*1 293 neighbors brought their suit time- er MODDEN, parte Ex Mack Willie
ly- Applicant. general once affirm the Texas again We turn rule that accrual of limitations should No. 74715. of a nui- constancy the and frequency however, clarify, decid- sance. We of Texas. Appeals Court of Criminal temporary or ing whether a nuisance is 21, April 2004. the standard of reference
permanent, weeks, days not but all should a few or be period years of with-
occurrences over bring can suit and in which claimants bring Judges can them trial. courts jurors the circum- may presume from current will contin- stances that conditions ue,145 contrary.146 absent evidence to the must damages We also hold while be adjusted any permanent to reflect abate- ment, categorization nuisances as
temporary permanent or not turn should contingency.
on that case, In this affidavits of resi- dents themselves establish that the condi- alleged regular tions here have been (though daily) continuous not for perhaps years many beyond two-year period preceding we hold Accordingly, suit. as matter of their complaints law
barred. We therefore reverse court of appeals’ judgment judgment render for the defendants. conditioners, Co., Bayouth noisy 671 moved air and otherwise
145. See v. Lion Oil S.W.2d Indus., 867, (Tex.1984); 868 Inc. voluntarily); Atlas Chem. Cross Tex. abated nuisance v. Anderson, 681, (Tex.1975). 794, S.W.2d (Tex.Civ. v. 524 684 Military College, 65 S.W.2d 795 1933, dismissed) (holding App.-Dallas writ Co., Taylor, Ry. 146. Rosenthal v. B. & H. 79 voluntarily before was nuisance removed suit 325, 268, (1891) (holding Tex. 15 S.W. 269 law); temporary filed see was as matter temporary likely nuisance is to be if it 454, Wolff, also v. N.W.2d 463 Weinhold by any agency by abated the defendant (Iowa 1996) hog-feeding facility’s (concluding voluntarily); GTE S. Tex. Ltd. Mobilnet of permanent open pit de waste nuisance Pascouet, 599, P’ship v. 61 S.W.3d 620-21 technology spite speculation that would solve 2001, (Tex.App.-Houston pet. de [14th Dist.] problem, as no showed "odor odor evidence nied) (holding deny trial court did not err in near”). breakthroughs control ing injunctive as relief defendant turned fence, lights, privacy offending built taller off *2 294 Wiercioeh,
Gregory Austin, Ap- W. for pellant. Lufkin,
Clyde DA, Herrington, Asst. Paul, Austin, Atty., Matthew for State’s State.
OPINION
PRICE, J., opinion delivered of the Court, MEYERS, WOMACK, in which HOLCOMB, COCHRAN, JOHNSON, and JJ., joined.
In application his subsequent for a writ corpus, applicant habeas claimed that he mentally retarded. We found applicant require- met the ments of Code of Procedure Arti- Criminal 5, 11.071, cle and we Section remanded to findings the trial court of fact for conclusions of The trial court found law. applicant is retarded. Because supports the record the trial court’s find- ings, grant we relief. History
I. Procedural applicant capital The convicted of murder to death in and sentenced 1985. On appeal, direct the conviction was af- firmed.1 In for application his initial habe- (Tex.Crim. App.1986). State, 1. Modden S.W.2d 721 859 v. light m of its decision relief, remanded we the conviction corpus
as
reversed
case to the
remanded the
Penry error.2
Atkins.6 We
for
findings and conclu-
court
to make
trial
1992,
applicant
The
was retried
*3
is men-
applicant
the
sions about whether
and
again
he was once
convicted
sentenced
tally retarded.
and
to death. The conviction
sentence
remand,
agreed and the
re-
the State
appeal.3
denied
On
were affirmed
We
men-
applicant
is
trial court found
the
applicant’s
applica-
in the
initial writ
lief
was based on
finding
This
tally
this
retarded.7
for
conviction.4 He filed
tion
this
three different men-
reports in which
three
subsequent
application after the Unit-
writ
appli-
concluded that the
experts
tal health
Supreme
began
Court
to consid-
ed States
mentally
is
retarded.
cant
Virginia,
in Atkins v.
er,
whether the exe-
mentally
people
cution of
retarded
violates
II. The Law
the
Eighth
the
Amendment
Constitu-
Supreme
The
Court held
application.
tion.
the
The United States
We dismissed
in Atkins
stay
that,
evolving
under
standards of
Supreme
granted a
of execu-
Court
tion,
the
later,
Eighth Amendment
days
decency,
and nine
it delivered the
the
Atkins,
prohibits
in
the
opinion
it held that
States Constitution
which
United
mentally re-
executing
mentally
people
the
retarded violates
execution of
who are
Later,
with
Eighth
Supreme
the
Amendment.5
the Su-
tarded.8 The
Court cited
by
set out
the
preme
granted
applicant’s peti-
approval
Court
the
the definitions
certiorari,
tion for a
our
on Mental Retarda-
writ
vacated
American Association
(AAMR)9
prior
Psychiat-
his
and the American
dismissing
application,
decision
tion
Modden,
71,312
(1985),
(Tex.Crim.
(1976),
deadly
deadly
parte
weapon
2. Ex
arson
No.
12, 1992) (not
App.
(1987),
designated
deadly
delivered Feb.
weapon
penal
in a
institution
publication);
Penry
Lynaugh,
(1992),
for
see
v.
492
weapon
penal
institution
and re-
302, 328,
2934,
U.S.
109 S.Ct.
L.Ed.2d
(1992).
106
agreed
stipu-
The
taliation
State
(1989) (holding
jurors
256
con
mentally
applicant
is
retarded
late
the
sidering
penalty
death
the
must have a vehicle
agreed pro-
present
and
to the trial court
give
effect to
re
their reasoned moral
posed findings of fact
conclusions of law
and
sponse
mitigating
to the defendant's
evi
Court.
the
on the remand from this
dence).
State filed a motion in the trial court to re-
holding
applicant’s
Our
form the
sentence.
State, No, 71,493 (Tex.Crim.App.
3. Modden v.
agreement
case
not based on the
in this
is
8, 1994) (not designated
delivered June
for
the motion.
publication).
Atkins,
321,
In the absence of legislative applicant, Kartye di administered the Wech- rection, recently criteria, adopted we those Adult Intelligence appli- sler Scale. The which are consistent with the definition the I.Q. cant achieved a full scale score of 64. legislature out Safety set in Health and He also the Wide Range administered *4 591.003(13).11 parte In Ex Code Section Achievement Test. The results showed Briseno, we concluded that criteria in the applicant’s reading, the spelling, that and subjective, thus, these definitions are and arithmetic at or abilities were below the we set out some additional factors that Kartye third-grade level. concluded that use.12 may factfinders We will review the applicant’s the intellectual deficits contrib- record and the apply adopted criteria we directly inability cope uted to his in Briseno. day-to-day
life’s
the applicant
demands:
The
III.
Record
cognitive
the
“lacks
and behavior controls
necessary to regulate his behavior.” Kar-
The
in
report
first
the
is from
record
Jr.,
Kartye,
concluded,
essence,
Dr. Joseph
tye
P.
in
psychologist
that
the appli-
3,
Id. at
(quoting
adopted
308 n.
tioning categories, and she found that the application for a writ of corpus. habeas applicant has been retarded since birth. He claimed that mentally he is retarded and that mentally execution of the
The claim parties that the litigat retarded Eighth violated the Amendment ed the applicant’s mental retardation claim to the United States Constitution. He also during the 1992 trial is incorrect. Al claimed that he prevented from having though evidence was admitted on the issue jury consider his evidence of mental retardation, of mental there certainly was retardation in the context of special special no issue on mental retardation in issues that were provided in jury jury cluded in the charge. This evidence charge of his first trial. During those was relevant to the mitigation special iss proceedings the trial judge found that the ue.14 If applicant mentally is retard applicant mentally part retarded. As ed, mitigates And, his moral culpability. findings, his judge the trial said just jury because the mitiga answered the *6 punishment At the special phase trial, tion issue “no” of his equivalent is not the petitioner jury testify of a finding that and was allowed applicant the to is not present mentally evidence retarded. of his mental Also the claim that retarda- the tion, alcoholism, applicant damage, brain “filed” a alcohol pro coherent se brief on consumption direct at appeal from the time of the his 1985 offense conviction does and purported not necessarily support abuse he suffered a the conclusion as that the child. These applicant presented is not matters were mentally as retarded. It mitigating punishment.... is common factors of his knowledge that there are “writ mentally [P]etitioner is writers” in retarded. TDCJ who will pleadings write for other inmates. The trial finding court’s has not changed.
While may there be some evidence to We filed and application set that contrary, the significant there is granted evidence relief on the Penry basis of er- that the applicant is mentally retarded. ror.15 In our unpublished opinion dispos- The supports record case, the trial court’s ing find- of the quoted Kartye’s we testi- ing applicant that the mentally is mony retarded. punishment from the phase of the The judge same trial presided who applicant’s over 1985 trial. He said that “even applicant’s the two findings trials made the repeated under testings optimal condi- tions, conclusions in this case. That trial his score would fall in mentally the mitigation special 14. The jury issue asks the that a imprisonment sentence of life rather "[wjhether taking imposed.” into consideration all than a of the death sentence be Tex.Code evidence, 37.071, 2(e)(1). including § the Crim. Proc. art. circumstances of the offense, the defendant’s character and back- ground, personal culpability Modden, 71,312 and the (Tex.Crim. moral of parte 15. Ex No. defendant, the 12, there mitigating 1992) (not is sufficient App. designated delivered Feb. circumstance or publication). circumstances to warrant for
299 KELLER, P.J., in the concurred the range.”16 After we discussed retarded judgment. opinion Penry Supreme Court’s pres- of retardation
how mental evidence HEKVEY, J., dissenting opinion, a filed sword, said, double-edged ents we a KEASLER, J., joined. in which mental evidence of retar- HERVEY, J., dissenting, Mr. Modden’s in which KEASLER, J., joined. problem. same presented dation the jury might a Even as rational com- respectfully dissent. The Court condition appellant’s that mental life found to a death sentence mutes applicant’s the upon its decision sentence based blameworthy, him less made finding applicant record a supports express their consideration required However, a care- mentally after retarded. way of mental in a his condition evidence, I ful of all of the consideration him the ultimate would cause to receive sup- the not would record does hold The issue special sanction. second sim- finding. this port jury way a ply provide not Virginia, In the United States Atkins v. of give mitigating effect evidence Eighth decided that Supreme Court retardation in this case.17 mental de- “evolving of standards Amendment’s has previously This Court concluded that matur- cency progress of a that mark presented applicant mentally evidence mental executing ing society” prohibit Virginia, v. retarded See Atkins people. at his trial. retardation 1985 2242, 2247-52, 304, 153 122 S.Ct. 536 U.S. parties’ make that the We want to clear (2002). to the L.Ed.2d Atkins left plea regarding attempt bargain strike appropriate of developing states “the task mentally status retard- applicant’s as ways” to “which offenders determine person ed no bearing has outcome Atkins, 122 S.Ct. fact retarded.” See found, long case. The trial court this 2250. parties, any agreement before between the this, in Ex In response to *7 this Court mentally that appellant the is retarded. the Asso- adopted American parte Briseno today solely Our on the decision is based (AAMR) cri- ciation on Mental Retardation findings, supported trial court’s which teria, are codified in Tex. which Health & Safety by 591.003(13), the record. oth- § and some Code addressing in Atkins evidentiary er factors supports We conclude the record parte mental claims. See Ex retardation applicant the that the findings trial court’s Briseno, 1, 6, (Tex.Cr.App., 8 135 S.W.3d result, mentally is retarded. As a we 2004) (mental “signifi- means retardation grant applicant’s the relief. We reform func- subaverage general cant intellectual in imprisonment to life the Texas sentence in tioning that is concurrent with deficits Department of Criminal Justice Correc- during adaptive originates and behavior period”).1 also stat- developmental the We tional Institutions Division. teachers, Id.., friends, op. employers, authorities- slip 16. at 2. time, mentally at that think was retarded Id,, slip op. at 17. at 2-3. and, so, de- in with that if act accordance termination? evidentiary 1. of the other factors Some leadership or his conduct show (cid:127) Does Briseno, 12, slip op. at adopted in include: by oth- does that he is led around it show person those who knew the best dur- (cid:127) ers? developmental stage-his family, ing the 300
ed in Briseno that stipulate “the ultimate issue of and agree- derstand that this fact, is, person mentally [a] whether in contingent is upon ment habeas [the for purposes Eighth retarded of the acceptance Agreed Findings court’s] of ban on punishment Amendment excessive of Fact and of and the Conclusions Law fact, one for the upon is finder of based all adoption of Criminal Appeals’ Court of of the evidence and determinations of Findings of Fact and of Conclusions Briseno, credibility.” See at 8. op. [applicant] mentally Law that find to be retarded. statement, however, This latter does not apply quite to this for proceeding habeas In event that [applicant] does not several reasons. The record in this habeas plead to guilty the above referenced of- that, proceeding exchange reflects in for inor the event fenses habeas [the court] applicant’s guilty plea to criminal several or the Court of Criminal does Appeals offenses, agreed the State a commuta- to accept adopt not Agreed Findings of applicant’s tion death sentence a life Law, of Fact and Conclusions contingent by sentence acceptance right oppose reserves the state Court, court parties’ habeas and this of the finding of mental retardation. agreed finding agreed and evidence added). (Emphasis applicant is mentally retarded. The State agreed The evidence between the State right finding reserved “the oppose 1985, and applicant Kartye’s consists of agreement mental retardation” if this can- 1988, psycho Brownlee’s and Clark’s 1992 part, not fulfilled. In be relevant this logical of applicant evaluations which are agreement, the form of a from the letter opinion. the Court’s See applicant’s discussed Ex lawyer, State states: Modden, 293, parte 296-97 S.W.3d understood, anticipated, It is expect- and (Tex.Cr.App. 74,715, No. this delivered your ed that once [applicant] client has date). (5) hearing any testimony, live Without plead guilty to the above five of- court fenses, apparently accepted the habeas day and the and at the same psychological signed these evaluations and your proceeding same which client only parties’ agreed off on your finding ap pleads, and in the event that pleads above, mentally plicant finding retarded. This client to the the state agree stipulate tracks the AAMR and the Section will 591.003(13) mentally client is definitions of retarda retarded that the mental Briseno, But, yourself 6, present op. state will tion. none [ha- See 8. *8 Agreed Findings psychological court] beas of of these state evaluations Law, and along Fact of are they Conclusions with that based on the and the AAMR 591.003(13) agreed your evidence of client’s mental Section mental definitions of And, retardation to that end. The state will Brown- Kartye, retardation. neither agree request further and that lee nor Clark have ever testified that their client’s sentence of death commuted psychological opinions be evaluations and life. The un- parties to hereto further based on the AAMR and the Section response person effectively Is his conduct to the in external Can hide facts or lie (cid:127) (cid:127) regardless appropriate, stimuli rational and own or in his others’ interests? Putting grue- socially acceptable? of whether it is aside or heinousness (cid:127) murder, coherently, respond rationally, surrounding Does he capital someness the (cid:127) point questions require and to oral or written commission of the that offense responses subject forethought, planning do his complex wander from execu- subject? purpose? tion or
301 591.003(13) the into completes inquiry that of retarda evidence definitions mental retardation.4 claim of mental applicant’s tion. pro finding in this habeas The agreed was Overwhelming presented evidence mentally that is retarded ceeding applicant that and 1992 trials 1985 applicant’s at “determinations of the is not result of also few, if the very any, of meets applicant hearing credibility’ at an adversarial live noth applicant factors and that is Briseno applicant’s of men to test the truth meant childlike Lennie.5 See like Steinbeck’s ing the More important, retardation claim. tal Briseno, 6, indicates at 8. This evidence into agreed does not take parties’ evidence a violent criminal applicant that has been pertinent all of the evidence account life. the Though of his adult for most claim of mental retardation applicant’s may applicant that evidence does indicate trial 1992 applicant's from 1985 and his capabilities, it also limited intellectual have (mental Briseno, at 8 retarda retrial. See applicant that no considered indicates one all upon must be tion determination based mentally while he was retarded be evidence). example, parties For of the reaching adult growing up upon and that mental litigated applicant’s retardation care has able take applicant hood been a setting claim an adversarial before prison in and out of where of himself both jury applicant’s 1992 retrial where (even of capital he committed this before ex presented psychological its own State 1984) good part a of his spent fense not pert applicant who testified that is of his defi life. The thrust mental adult mentally It fairly retarded.2 is obvious his 1985 and 1992 ciency evidence at both ap from the 1992 from examining record applicant’s that mental deficiencies trials is rejected 1992 that the plicant’s jury retrial impulse him to control poor cause mentally claim that he is ret applicant’s by others for their and to be influenced Taylor, arded.3 See parte Ex 101 S.W.3d means, this and that all of is exacer own (Tex.Cr.App.2002) 434, (d 440-45 ete rmini alco by frequent use of applicant’s bated ng from an of record examination many that of hol. But evidence shows jury by general a guilty found not applicant has the criminal offenses verdict). Briseno, therefore, not re does planned his life were during committed accept this Court to find quire agreed by out all himself. and carried ing applicant mentally is retarded 1985, 1988, appli- indicates that Kartye’s based on The evidence also Brownlee’s leadership some psychological might possess cant even Clark’s 1992 evaluations 6, September example, not to these For applicant. say qualities. This is irrelevant, 1982, report disciplinary but indicates prison evaluations are should applicant placed Administrá- be considered with all of other relevant 1988, 1985, testimony Kartye's Brownlee’s 2. This is not in either mentioned findings ap- the habeas court's or this Court’s psychological evaluations Clark's opinion granting applicant corpus re- habeas Briseno, however, says that the men- plicant. *9 on his retardation lief mental claim. must be based tal retardation determination Briseno, op. "upon of the See all evidence.” Briseno, (Holcomb, J., op. 3. at 21 dissent- See And, agreed finding ignores here at 9. the right ing) (persons applicant to like "have the overwhelming applicant that is other evidence jury on the of mental determination issue mentally not retarded. retardation”). argued 4. It could be that this Court should Steinbeck, Briseno, citing op. at 6 John 5.See parties’ agreed accept finding and that the (1937). Of Mice Men only Court evidence that this should consider 302 Segregation
tive inciting for other inmates in adminsstrative segregation [sic] in or- perform not to their work duties. prevent der to disruption of unit pro- 6, 1982, September On at approximately cedures. P.M., 3:15 trays noticed that The record appli- further indicates that both the North and South Dishrooms cant presented no evidence at his 1985 stacking up were being and not washed. trial that mentally he was retarded. Kar- I then entered the dishroom and found tye’s psychological evaluation, 1985 which that all assigned of the inmates to the was trial, admitted into at evidence Dishroom refusing any to wash does not applicant conclude that “mildly is trays. These [appli- inmates were mentally And, retarded.”6 Kartye never cant and five others]. These inmates testified at applicant’s 1985 trial appli- they stated that refusing to wash “mildly mentally cant is retarded.” Kar- dishes because could not tye never even used the term “mental any ice water in [Appli- the Dishroom. applicant’s retardation” at 1985 trial. Kar- placed was Seg- cant] Administrative tye applicant’s testified that “limited intel- regation in order prevent to the inciting lectual resources” caused him to have “im- of further stoppages work pre- to pulse problems” control applicant but that vent disruption of unit procedures. was also capable acting deliberately.7 It The evidence also indicates that appli- is also significant that applicant filed a cant capable is of responding “coherently, pro coherent se appeal brief on direct from
rationally
point
and on
to oral or written
his
capital
1985
murder conviction.8
Briseno,
questions.” See
op. at 8. For
Applicant
claim
that he was mental-
5,
example,
1982,
an
prison
October
disci-
ly retarded at his 1992 retrial after
plinary report
states:
Supreme
United States
Court had decided
5, 1982,
On October
approximately
Penry v. Lynaugh which held that
2:20 P.M. while
work force was
A/L
then-existing
special
Texas
issues frame-
weeds,
cutting
[applicant] was overheard
work
provide Penry’s jury
failed to
with a
say
to
“Fuck the boss and old motor
give
vehicle to
mitigating effect to rele-
mouth too.” Upon questioning [appli-
vant mitigating
Penry’s
evidence of
again
severe
cant]
stated “Fuck
and the
mental
Captain because
retardation.9 Two
you’ll
psychological
ain’t going
[sic]
(Brownlee’s
fuck with
applicant
me.” I told
evaluations of
[applicant]
go
1988
replied
case,
evaluation),
work and he
“If I
evaluation
get a
and Clark’s 1992
am
going
not
to work and I am going
concluding
for the first
that applicant
time
sue
[Applicant]
placed
ass.[”]
“mildly
retarded,”10
is
mentally
were ad-
opinion
6. The Court’s
and the
may
habeas court's
writers.” This
be so but it does not
findings incorrectly claim otherwise. See
prove
prepared applicant's
that a writ writer
Modden, slip op.
(stating
"Kartye
at 6
brief for him.
applicant mildly
concluded that the
mental-
retarded”).
ly
302,
Penry
Lynaugh,
See
v.
492 U.S.
9.
2934, 2947-49,
(1989).
S.Ct.
303 591.003(13) of mental retarda- applicant’s 1992 definitions mitted into evidence at of pre- Mostly through sup- the use retrial. Before this no one ever tion. viously applicant’s mental ported-by-the-evidence hypothetical, noticed retarda- at expert ap- tion. testified psychological State’s is not applicant 1992 plicant’s retrial testify not at applicant’s Brownlee did AAMR and under the mentally retarded According 1992 retrial. to Brownlee’s 591.003(13) definitions of men- the Section evaluation, applicant, 1988 unlike Stein- tal retardation. Lennie, enjoys torturing animals. beck’s evaluation, among things, Now, other Okay. Quijano, This Dr. know Q. states: in things controversy of in that one is issue of mental retarda- this trial tortured
[Applicant] said that he animals sir, often, jury, please, tell the tion. Could by burning hang- them or either retardation? of the feel- what is mental ing Upon exploration them. that,
ings
he had no
associated
a condition of
A. Mental retardation is
statement, but he said he did
affective
that has
meet
three
an individual
squirm.
like to
them
and
see
suffer
criteria,
three
be met
and all
must
be-
can
of mental retardation
at
fore
label
applicant’s
Clark
1992 retri-
testified
legitimately given.
al.
be
Among
things,
other
she testified
applicant
as
place
she would
“somewhere
1,
the individual must have
Number
functioning
far as
the lower three to
intellectual
subaverage
below-average
percent
meaning
the population,”
five
of
functioning
an
by
as measured
individu-
that,
Clark,
apparently
according to
three
test,
intellectual
intelli-
ally administered
percent
“mildly
of the population
to five
is
gence test.
mentally
is
interestingly
retarded” which
2,
important,
and
very
Number which
five
about three to
times more than that
is,
have an
the individual must
in Atkins.
by
expert
claimed
the defense
skill that’s be-
adaptive daily functioning
Atkins,
(forensic
See
n. 5
Defendant. So there are mean the By adaptive A. we town, 1,500 in the ple our about are skills by an individual live on needed same as boat Willie Mack Modden. those are-the day-to-day basis. And as follows: questions asked The presented psychologi- State its own their they This Are to take care of own expert applicant’s cal 1992 retrial. able testify they Can eat without only psychological expert personal hygiene? is the they recognize hunger? applicant’s on the mental retarda- assistance? Can issue food for themselves? procure tion on the Can based AAMR the Section *11 they simple Can cook they meals? Can avoid embarrassment before she sum- recognize danger in that you don’t cross help give moned to him get more time to the big street when a coming truck is away. your way? they Can go to a store and Assume, doctor, that person, this when negotiate purchase? they Can know if they TDC, were incarcerated in learned they’re being by somebody cheated else? regulations the rules and of the Texas they Can take they medicine when Department of Corrections. And as- told they to or when need to? guard sume that if a something that All of things these are considered approve he didn’t of or that he felt was skills, adaptive people some call them rules, against the that he would summon daily daily skills of living. guard. another guard And if that was Q. Okay. Quijano, Dr. let me ask assume, not able to question, answer his Assume, sir, this. please, per- that the doctor, that he would summon the su- son-the Defendant that we’re concerned pervisor, sergeant, such as the and that
with today, here Willie Mack Modden- he would complaint verbalize his assume that there is evidence that the say: rules; against this is the that man dominoes, Defendant is play able to to can’t do that to me. score; keep assume that he is able to play chess. Assume that he is able to assume, doctor, And person that this play basketball. jail. were incarcerated in And assume Assume that he is able to order materi- they that decided they that to wanted als and jewelry construct boxes out of escape. they And assume that got with designs. matchsticks with And assume inmates, other they and assume that that he is negotiate able to to sell those battered a hole in the wall. And assume people. Assume that says, hey, said, going the Defendant I’m buy friend; this for girl I know out, and I’m going to down burn the you’ve got girl somebody friend or courthouse so there won’t be records on to; want to give hey, this you give will assume, doctor, me. And per that this $15; you that; me won’t do will you give said, son I’m going go then kill the me 12. people helped put peni me Assume, doctor, that dealing we’re tentiary in place.[11] the first who, an by himself, individual stashed a assume, doctor, person tins gun kept it for some period of time by somebody. offended [sic] As- it; and until he needed then he went and sume somebody person hit this when gun, and he went and hid in they penitentiary. were in the And as- some bushes outside of a convenience blades, they procured sume that razor store. And he waited until near closing and assume that melted them into time, and he lady waited until the took the handle of a toothbrush. And assume the trash out. pulled And he gun her, that they day waited until the next go he made her back offending person store. And he made him the shower give her money. assume, doctor, And then and had their face up. lathered he made the pull woman her assume that person clothes off this then went in so that she would have to re-dress person’s and cut that throat. Briseno, (one op.
11. evidentiary See at 9 fac- appropriate, nal stimuli is "rational and re- person's response gardless tor is whether the socially acceptable”). to exter- of whether it is
305 to range way up 57 all the 83. Doctor, in the things are these consistent with the deal? What’s mentally person? retarded information, if Okay. The-given this A. No, they A. are not. to account for that-assum- I were asked they’re Q. why tell not? Can me tests were administered ing that the mentally A. The hallmark of a retarded thing has only the properly, and that person simplicity thinking; is of of the the motivation changed would be one at a maybe thing handle can the test. person taking time, maybe mentally two. The retard- trial, it is your If are tested before simple- used to called the people ed be If to test down. your to best interests minded. trial, once are after the tested These described behaviors you may want- you’re prison in where be They re- very complex are behaviors. assignment, ing job a better where They quire multiple steps in the mind. school, go to or may wanting be to require you-that you keep four a more free may wanting where be five, and things six different mind living arrangement-the are better manipulate intellectually then them and off, the are because better chances mentally. complex Those The are acts. prison, if are retarded then planning, forethought, anticipa- the the are You’re su- your movements limited. the consequences, thinking tion of the on get good more. You cannot pervised feet; complex all of those mental are jobs and so and so forth. on mentally that a activities true retarded are possibility one is that now- So definition, person, by cannot do.[12] problem no to the longer playing are provided This also expert expla- several you, facing all behind charges; of is why applicant’s IQ nations on test scores maybe testing better and and in his penitentiary contained records However, accurately. more there are ranged to into from 57 83 before down, say, who would I tested prisoners this trouble. current may people because these want be Q. Now, Okay. in this record where I, assigned to Beto which is closer to 18, age shows the Defendant’s which home, that is their and where men- 26, is marked as State’s Exhibit it shows is; tally test program retarded IQan 57? score of down. A. That’s correct. pro- you may want have other Or Now, record, Q. Okay. in this which is grams mentally for the retard- available 28, State’s Exhibit Number and it shows general ed that that is not for available IQ 26. age Defendant’s as What that all population. people do score does it show? program; time. to the MR They well, they say, A. It shows 83. is not what I this expected; give me another test. And here, Now, Q. I will-these records are they test kick them out. higher, we doctor, fur- if to look them need that; Q. Dr. let me explain Quijano, ther but like ask this. I’d IQ jury do the test score and-how believe that where discuss account, sir, September or can for an account 83 shows interview Now, th, there range IQ the 10 1974. would be wide variations scores Briseno, generally op. See at 9. 12.
any change-is tor, to-well, there reason for a I’ll ask there’s a date on *13 person change to their attitude toward this. don’t We have to assume anything. testing between 1974 and now in the 1-26-1985; examination, Examined 7- penitentiary system your knowledge? Now, you 11-92. mentioned perform- IQ. A. Yes. ance IAnd believe that Kartye’s Dr. report performance IQ 74, reflects a of Q. you explain Could that to the jury, and Dr. report Clark’s per- reflects a please, sir? IQ this, formance of 65. Is the more 1984, A. Before when went back to test, recent lower? system the implement the federal orders, court specialized there no was A. Yes. program retarded, for mentally the and Q. you square What-how do up? special there was no arrangement for treated, them. You essentially by A. possibilities. two The most system the way system the thought recent test is more suspect than the mentally retarded people should be previous test for two reasons. Number treated. And the motivation at one, a person cannot fake correct an- time up to test because have to because, swers if you give the correct compete with other inmates for better answers, you obviously know the correct jobs. days These there is less motiva- answers. So it is-if you high-if score tion for that. you’re questions, asked you gave now, The motivation depending on what answers, you obviously know at this lev- want, is to test down because el. It say, is much easier to I don’t have a richer special- environment in a know. program. ized mentally Our retarded It’s easier to fake lower than scores program very is a expensive program fake higher scores. You cannot fake because have case managers and higher scores because either know music therapy occupational therapy. the answer or don’t. You can fake (cid:127) your have own gymnasium. You lower by saying, score I don’t or if your have own schools. It’s a lot richer you don’t enough motivation to program. You janitorial have basic test, complete you’re or if trying not training job skills programs. So the too hard. motivation has prison, shifted de- The possibility second our pro- which
pending on what want to accom- fession against is warned testing is plish. one is in always trouble. You must sus- expert This also person testified that a pect is, malingering; we call cannot higher IQ fake a score “because an exaggeration symptoms when one you either know the answer or don’t.” is in trouble because of our human na- Q. got couple I’ve things, Qui- Dr. protect ture to ourselves. And so these jano, that I want to look at. I’m scores explained by can be those two going try to be brief on this. This is ' possibilities. Dr. report, Clark’s I believe. And we’ve got Kartye’s this, Dr. test here. And expert The State’s also testified that his believe, psychiatric is a by evaluation opinion applicant’s about capacity mental Okay? Dr. Brownlee. part was based in applicant's prison First, I want to talk about the two tests records before got he into this current Now, which have scores on them. doc- trouble any testing and that of applicant
307 and we’ll again, this and over this would be of over after he into trouble results, on what depending different test no benefit. is. situation Q. Okay. infor- Do have sufficient opin- applicant not disposal to form an The evidence that mation at best applicant from mentally retarded came capacity? his ion about him and mental at his trial.13 himself when testified A. I do. punishment Applicant testified at Okay. many Q. have how *14 he of his 1985 trial how robbed phase penitentiary of records? years’ worth her 16 clerk and stabbed convenience store A. The Defendant’s records? neck while she times in the face and Q. implored applicant her life begged for and Okay. in A. Not mine. Four tenures Applicant to her three children. consider TDC. later, matter-of-factly, to several described sobbing friends he the and how murdered Q. Okay. Applicant testified that terrified victim. A. I don’t know the number of exact kill he he to the victim before decided years. actually (meaning that he “delib- killed her And, doctor, Q. do have at her). testified that he erately” killed He disposal psy- test other results of killed because he not want the victim chologists? testi- Applicant’s to leave witnesses. A. I do. phase this mony punishment from the of Q. to Would it be of benefit to be after the crime trial also indicates that able to the Defendant? test enough destroy to applicant was smart stage A. At late not be of “artfully dodge” police this would to evidence and or anybody benefit to me to test him his in the questioning about involvement A per- because of the motivation factor. crime.14 testified about his Applicant also hostage escape son in answers from the plan that’s trouble-and the take a and jail. questionable, repeat county now can and we lawyer be testimony pages trial]
13. This 221 cant’s from the 1985 cannot coherent covers strategy.” reporter’s viewed the context of This in the record attached an and is as Atkins, appeal. rejected Court this on direct appendix opinion. claim this See 122 State, (Tex.Cr. slip op. See Modden v. at 13-15 (noting testimony at S.Ct. 2244 that the trial 8, 71,493, 1994) App. June No. delivered accomplice Atkins' of was "more coherent (nonpublished). testimony). and credible” than Atkins’ trial testimony applicant’s This was introduced at during 14. The commented on this clos- State testify Applicant 1992 retrial. did not at his ing jury arguments applicant’s at 1992 retrial: 1992 retrial. you to do When think But I ask this: appeal capital In his direct his 1992 from intoxication, of at about the issue look conviction, (in applicant murder claimed and see what actions of the Defendant 15) lawyer grounds 14 and his from his was Look at how he able to makes sense. permitting appli trial was ineffective 1985 for many her. how times he stabbed remember apparently testify at the cant 1985 trial pause he able to and Remember how was testimony seriously because this undermined police by. Re- when the car drove watch applicant’s claim his mental retardation he able to burn his shirt. member how was brief, applicant argued brought 1992 retrial. In his and how he was Remember officers, testimony inherently his trial was questioned by police "[1985] and re- artfully damaging [applicant], dodge and when consider able to member how was testimony caught not ing expert questions to in their such that he was referred anoth error, ground by months later. [appli the decision until some er The State’s psychological expert testi- rected what attorney his said. He applicant’s that, fied at 1992 retrial would up re-phrase back Iwhat said forming opinions person’s about a mental or .whatever the situation was. This ability, it is also important “to look at very man is alert as to what going person actually on, does” and not to make and he consequences knows the judgments person’s “about a character on doing, what he was why that is we the basis of test only.” results are here today on the issues of deliber- ate Doctor, probability.
Q.
possible
is it
to look at what
actually
someone
does and use that as a
entirety,
Considered in its
the record
basis for
opinion
an
as to
person’s
support
does not
finding
habeas court’s
ability
mental
or that person’s future
applicant mentally
retarded. See
behavior, just
as
could use test re- Briseno,
(this
op. at 12
Court’s review of a
sults?
trial court’s findings of fact and conclu-
*15
A.
it’s more important to look at
sions of law on a mental retardation claim
what the person actually does. And it is
“remains the
always
same as it has
been
not professional or ethical to
a
make
on
corpus
habeas
applications,” and this
judgment
person’s
about a
character on
may reject
Court
the habeas court’s find-
the basis of test
only.
results
ings that
the record does
support).
not
The evidence overwhelmingly supports a
Responding
Kartye’s
psychological
finding that applicant
mentally
is not
testimony, the
re-
argued during
State
closing
tarded,
contrary opinions
and the
jury arguments
appli-
of
applicant’s
1985 trial:
psychological
cant’s
experts
politely
can
be
Then
go
glimmer
have to
toward the
described as “incredulous as a matter of
hope
of
can get somebody side-
Atkins,
(not-
law.” See
in November 1988. this Kar- can? Q. [applicant] Do believe that of Kar- tye testified on behalf the State. outside envi- A. He has functioned and, tye actually used term testified life was arrest- ronment all his until he applicant for the first time that was suffer- ed. from, ing “mild mental retardation.” record, of criminal Q. aware his You’re you’re Dr. Q. Kartye, [STATE]: aren’t Kartye previously same Dr. who exam- A. Yes. ined not? [applicant], Q. think he could function out- Do Yes. [KARTYE]: A. without side structured environment examination, Q. According himself others? endangering to his make a determination as level A. No. intelligence? examination, Kartye testi- On re-direct A. I did. inability to fied that function applicant’s Q. recall that was? do of a environment with- outside structured A. Mild mental retardation. hurting people out other was because *16 not past history his criminal and because Kartye testified on direct examina- also mental degree of his of retardation. acting tion that of applicant capable just Q. Kartye, Dr. one “deliberately.” [STATE]: that, ago in question. You said minute Q. From having examined [STATE]: not [applicant] could func- your opinion, Doctor, [applicant], ask if would doing society tion outside-in without whether not could feel he ever others; is that cor- harm to himself or deliberately? act rect? A. that he [KARTYE]: feel can. correct. A. That is [KARTYE]: cross-examination, Kartye On testified Q. opin- Is base that that based-do applicant that could adequately function degree on of retardation ion his mental outside an institutional environment but history? or his criminal past endangering not without himself or others. history. A. criminal past His in Q. Kartye, Dr. [DEFENSE]: the November Brownlee testified at report you provided during that the trial hearing applicant’s 1988 behalf. habeas 1985, you of this case in stated and I that is mental- applicant Brownlee testified quote, appear [applicant] “It would not to ly applicant retarded which causes lacks and controls cognitive behavioral to act capability have the intellectual “de- regulate to his necessary effectively be- “intentionally” being or of liberately” or havior.” Do recall that statement? testified example, “sane.” For Brownlee A. I do. [KARTYE]: applicant’s how mental retardation causes Q. Do that that’s the truth? you believe applicant capa- to have the intellectual not A. Yes. bility knowing to sense of be “sane” Q. regard testimony right wrong between your And with difference applicant “hurting another morning, here did I understand and that for this mildly soiling pants.” like his correctly person to state that most re- would be Q. Why do-why [STATE]: would he when he testified that “personal he has try to hide his if wrong he didn’t know knowledge mentally of how a per- retarded the difference? might” son act. A. [BROWNLEE]: Because there’s a Q. expe- [DEFENSE]: Have higher wrong level of imply we your rience before in mentally work with being caught doing something bad. retarded defendants? know, degree there is a certain of A. you- [MORRIS]: Would messing your shame at pants, and I’m Q. Have ever-in the course of that, sure [applicant] would investigation as an officer of Depart- have that if shame he soiled pants. his ment Safety, of Public have ever And in hurting his mind person another mentally dealt with retarded defen- soiling pants. would be like his It’s a dants? shame, thing that causes but it’s not of, A. Not that I know sir. something feel so bad about Q. you don’t-you any So don’t
because understand the long-term personal death, knowledge mentally of how a implications of under- person might retarded stand the interact with impact on other people. Like interview, opposed person he told as to a my me normal intelli- he made Heaven, gence? go [the people victim] happy
should be about that. That’s an A. I do. assumption absurd a person for who has Q. And what is that based on? a higher degree intelligence. A. I have a mentally son that’s [sic] Q. you really So think that he thinks retarded. nothing he did wrong, should Q. you’ve But never dealt with happy be go because he made her mentally retarded defendants? Heaven? *17 A. I have not. me, A. That’s what yeah. he told Q. your had no reason in dis- Brownlee also testified that Kartye’s [applicant] cussion with to think that he psychological report was “insufficient to mentally retarded? help in any way.” [him] A. I do not. Q. Referring [DEFENSE]: back [DEFENSE]: Pass the witness. Kartye’s to Dr. report, based on knowledge experience and a psychia- as To the extent that opinion the Court’s trist, do have an opinion as to the suggests that the finding habeas court’s overall of quality his examination of [ap- the proceeding applicant 1988 habeas plicant]? “mildly” mentally is retarded dispositive is A. If this was re- [BROWNLEE]: a collaterally estops a consideration of all port prepared by psychologist a that I evidence, of significant the other to is would ask-I’d have him redo it because point out that the habeas court made this help any way. it’s insufficient to me in finding before the Supreme United States The presented State also several police Court decided Penry. finding, This there- that, fore, witnesses who testified during their was not essential to the habeas numerous applicant prior interactions with court’s determinations in the 1988 habeas trial, they to his 1985 did not notice appli- proceeding, and the not to State did need cant’s mental retardation. One of fully fairly adjudicate these and the issue of ap- witnesses apparently surprised the plicant’s defense mental retardation at this time.
311 by the Watkins, 264, supported claim not retardation parte 73 S.W.3d 267 ExCf. (collateral bargaining chip dispose to of estoppel bars (Tex.Cr.App.2002) record as “specific any evolving and facts relitigation of discrete not advance this case would fairly adjudicat Atkins, fully that have been decency of either. See standards ed”); In v. American Medical contrary, Johnston effec- 122 at 2247. On S.Ct. ternational, 572, (Tex.App. 576 36 S.W.3d an on unsub- bargain based tuating this writ) (collateral 2000, estoppel -Tyler no claim would mental retardation stantiated fully of facts that were relitigation bars of “devolving standard a sort of promote fairly adjudicated and essential society indifferent decency” that marks action). in the For these judgment first applicant of dignity to the the victim whom reasons, opinion granting 1992 this Court’s Atkins, 122 brutally so murdered. Cf. not corpus relief also is applicant habeas (basic underlying concept 2247 S.Ct. at applicant mentally is dispositive whether “is jurisprudence Eighth Amendment retarded. man”).17 dignity of nothing less than the of applicant’s That the issue mental re- I respectfully dissent. not to the habeas tardation was essential in the habeas court’s determinations 1988 APPENDIX by proceeding is underscored the habeas deny habeas court’s recommendation following: contains the Appendix This appli- corpus despite finding its relief Reporter’s (Appli- Record at 2169-2171 “mildly” mentally is retarded. The cant jury’s cant’s examination outside direct of applicant’s issue mental retardation was phase of presence guilt/innocence at the fully fairly adjudicated appli- not until his trial on the issue of voluntariness cant’s retrial. There the State liti- statement). his written this gated expert issue with its own who is Reporter’s (Appli- 2171-72 Record only psychologist express opinion an jury’s outside the cant’s cross-examination applicant’s on mental retardation based phase of presence guilt/innocence at the 591.003(13) the AAMR and the Section of the voluntariness of his trial on issue of mental definitions retardation this statement). his written adopted Court Briseno. really
What this case boils down Reporter’s (Appli- Record at 2483-2634 *18 in whether this Court should stand the jury’s in the cant’s direct examination way bargain of in parties the the made this the of his presence punishment phase at proceeding. point habeas At this the trial). case, 20-year-old of
judicial process this Reporter’s (Appli- Record 2676-2743 (or not has do believe that this Court jury’s pres- cant’s cross-examination the exercise) power should the to effectuate trial). phase of his punishment ence at the bargain through the a men- this vehicle of the tal retardation claim which record does WILLIE MACK MODDEN support. executing truly Just not as defendant, called as a witness mentally was person retarded would not ad- and, duly having his behalf been any “evolving decency of own vance standards Court, to by the testified as follows progress maturing that mark the of a soci- sworn by parties questions propounded to him Counsel. ety,” allowing use mental applicant cy upon bargain, parties may applicant conditioned 17. To effectuate their for bargain. remedy seeking fulfilling part executive clemen- his of DIRECT EXAMINATION Did anybody sign force this statement? QUESTIONS BY MR. ASKINS: No, sir. Modden, Mr. your is this signature you give voluntarily?
here? sir. sir. Were of your in threat life or Do Kirbyville, recall down in Tex- freedom? as, went before Mr. C.R. Dough- orty, Freedom. Justice of the Peace down there? Q Well— sir. A I wasn’t threatened. Do him giving you remember this
warning? time, jail You were in at the weren’t you? Q That’s as to Forty? State’s Exhibit Q Nobody threatening you, were they? Now, what is marked State’s Exhibit No, Forty-one Forty-two. me. Do —excuse Q Or they? you recognize this be signature? No, lawyer have a at the Do Judge remember Hulen time signed papers? these Angeline
McClure here in County, 15th 1984, day October, 2:28 giving you P.M. Magistrate’s warning?
this either, But had not for one asked you? Q And you give both of those—Did hear Or had clearly both of those and under-
stand them— telling But are court signed pages all four of that given —when voluntary statement that dated October Mr. heard Goodwin testifying 15, 1984, freely voluntarily by about what is marked State’s Exhibit your own choice?
Forty-three, yet which is but not admit- *19 Yes, A sir. ted.
Now, to, opportunity forcing you an Without anybody to but read over past this statement on because occa- wanted to?
sions? sir. Yes, sir. Q Is that correct? it that day read before Yes, sir. signed it? MR. ASKINS: All Pass the wit- Yes, sir. ness. Honey Island. EXAMINATION
CROSS Island, Honey Texas? Q Where is BY MR. QUESTIONS GOODWIN: Kountze, Oh, Texas. over there close these, Modden, again, of Q Mr. all were, you, rights your understood what natural mother? your Who is sir? May Young. A Dosie Yes, lady just testified? who Was things these that were said Q And all of Yes, talking you, you knew momma? another Q Do call woman about, lady? Who is Mack, statement, there In the Willie Modden. voluntarily, wasn’t it? Rosalie given Q And raised who I have no further MR. GOODWIN: A Rosalie Modden. questions, Judge. question no about —let me Q And there no further MR. ASKINS: We have question. right and ask stop there Your Honor. questions, you are not re- Do understand may step You THE down. COURT: testify? quired to
Any further witnesses? MR. Your Honor. ASKINS: You understand THE Okay. will make COURT: commenced testi- stand now and as finding that what is marked State’s fying? Forty-three Exhibit was made Number freely voluntarily. are available understand Honor,
MR. Your ASKINS: Attorney by for District cross examination warning, I Magistrate’s as to fail one substituting anybody Gerald Goodwin for him in this case? WILLIE MACK MODDEN defendant, stand in took witness and, duly first having his own behalf been jury this has found Q Do realize that Court, by the testified as follows sworn capital murder? of the offense of guilty questions propounded him. range do understand DIRECT EXAMINATION case, you not? punishment for this do QUESTIONS BY MR. ASKINS: name, please. Q State range pun- Q Do understand that My is Willie Mack Modden. name life or death? ishment to be *20 Modden, you? Mr. how old are Yes, A sir. Thirty-six. you testify, if Q Do understand that by this you say will considered be you born? Where were
jury to degree that they are willing Qto Who was her husband?
consider it? A L.C. Modden. Yes, sir. ever in your live childhood Do they understand that are not anywhere Honey other than Island? required give your testimony any more A Conroe. Then I moved from Conroe value, or any less as far probative value, as to Silsbee. than other witness that has taken the Were always with Rosalie Mod- stand before or any might witness who family? den’s take the stand after in this case? Yes, sir. Yes, sir. your ever live with natural Q Is it your still go desire to forward and mother, May Young? Dosie testify? Yes, sir, know, but live with not— Yes, her, stay with her. Q All right, sir. And I believe testi- know, my auntie would take me fied that Rosalie Modden raised you. Is up there. that right? Q Did Rosie Young live with her hus- Yes, band? And do recall when you moved A Rosalie Modden? Honey from Island? Q Modden. sorry. I’m Well, sir, young. was About the first grade, Repeat again. I think. Was Rosalie your heard Modden married? momma’s testimo-
ny. Are in agreement, from what you’ve been your childhood, told in Q To whom? basically she turned over to— A L.C. Modden. A I agreed to it. they Do continue to together live to- Q Sir? day? my What question? your To knowledge. A I agree turning about she me over to my auntie. many How children did have?
Q All right, sir. Listen my question They girls had five boy. and one very carefully— girls think five boy. and one Because I make together. seven all Q —and answer them after I through Was momma correct when she asking them. said that there was a girl you, older than and all the rest of younger the kids were Q Did Rosalie Modden raise than *21 then. I used to young A were get along those chil- No. We
Q with How not to do. try to her what to do and tell dren? Q had to her? You raise good. got along A I know, she things You was any Q any You never fusses with doing, I didn’t like. them? little Q you were kids? When Oh, yes, then. Oh, grown I no. was any fights Did ever have with asking about I when was of them? a kid. Oh, have no trouble. no. We didn’t with fights have the most Who did got whipping never a because You of those kids? her? fighting with really A I can’t tell. know, right then. You sir. Not no, young, good when we were you get along poorly Did real girl? with that older you got whipping for You mean of the got her after out fighting with up along good until gotWe we penitentiary? age.
Q How old? whipped you? Who know, I to the You whenever went A Rosalie. penitentiary the time. first whipped mean Rosalie still you. I didn’t understand you got penitentiary? after out of the the penitentiary Whenever went know, me. she hit She sir. You the first time. just whip me. talking about the oldest Are Q Now, do school? how did daughter of L.C. and Rosalie? doing good too because wasn’t Her name Rozella. school. playing hooky from get whipping ever because go- you remember where Do of fighting with Rozella? time? ing to at that school A Yes. A Yes. Q Where? along Is call getting
good? High School. Waldo Matthew Q Where? Matthew, M-a-t-t-h-e-w. Waldo Q All How often would fight? Rozella any- fight ever in a clearly? body you couldn’t talk because Oh, often. we—not too Oh, fight. many I had occasions over the usual fighting Were fights have those town .did kids over What things fight in? kids?
316 Silsbee, Oh, sir, Texas. yes, I have. got You also off gang fights, into too. you What school did have the fights in? right? Is that High Waldo Matthews School. Yes, you And where did fights? have the you When the first time can ever A On the yards maybe school in the remember stealing anything? room. A I young. was I don’t remember. I Q All right. That you is the school that young, though. Silsbee, in went to Texas? Q Well, you elementary were school or before school? talking That are Right? about. About the fifth or sixth. yourself Do good recall as a child or a leave bad child? school or were ex- pelled from school? A Good child.
A Leave. Q Up to when?
Q All right. Do recall ever being A Until I company. with bad expelled from school? Are saying your that all of trouble sprang being from around company? bad Q Why?
A Fighting. Nobody to blame but them. Is that correct? Were protecting yourself in those My job, yes, fights? Q As a child.
Q You never did cause a fight, knowledge? You weren’t in gangs, around bad company were at home at Rosa- Yes, sir, I remember causing well,— lie’s, school, before started know, we had a little gang, you know. Q A game— just started after I moved to Silsbee. I got up When age gang? Or Bonnie Street. remember that on Bon- nie Street. mean, A A gang, you know. Q What street? together.
we stuck A Bonnie. B-o-n-n-i-e. So, talking gang Yes. about game? and not a is, my question ever cause any of these one on fights yourself? one gang fight. sir. A A I can’t remember. Q Gang fighting. But did have these fights that I am asking by yourself Q about All right. long How out of person? with another school—let me ask this: Did ever *23 Yes, A sir. the law enforcement in trouble with you school? quit officers before your Q decision? What was Yes, A sir. decision, kept doing I the more A The doing right, doing well, I was Iwhat was — you get into? Q What kind of trouble just care, I you know. thought. I I didn’t Well, jail. me in Not my put A mother big thought I run around with would momma. My aunt that I call her. my age nobody did run with boys. I never sister, my I we ran me and remember run with always I young. when was Well, and I bag I had a off from home. always did do than me. people older my daddy for home before headed with that. And I him in Silsbee he lived with died. than people older Q always ran with Liberty young. when was you? Rosalie’s Q you run off from Would A sir. see father? Is that what house to running around When were saying? younger were people those older talking be about sir. She would than, to do? who decided what whipping me and I would leave. named Pollard. dude James Q Well, whipping did she talk about Pollard. James a few times or often when were kid? he a nice Tell us about Was James. A Often. fellow whip you a few times or often Did she No, sir. a kid? were buy you candy or soda sir. water? Q Which? No, buy you claws? Did he bear
A Often. No, Why whip did she picture get you in the show? Did he Fighting getting doing wasn’t —I hooky from nothing playing school and things school like that. you to church? he take Did trying Rosalie Modden was right? make do going all were Q Did he tell to do? Is that what understand? all were he decide whether Did running around or not? going out think about whether And did ever doing doing wrong or dur- right ing period time? this something do just ever your own? as to And did reach decision doing right wrong? What? whether
A Robbery. ever, child, just go as along the side of the road and pretty see a Q As a child? flower and take it to Rosalie? Oh, no. *24 Did ever do anything your own Did anything ever do for Rosalie? robbery? besides Oh, yes, A sir. Well, A sir. really. not Mostly me Q What that was nice? and that together. dude would be Oh, A me and this broad I was married Q As a child— to— Yes, A sir. Q I can’t you. hear Q —Willie Mack— talking about when I awas kid or Yes, sir. grown? —did ever do anything, Q As a child. remember, just can because wanted to no, sir. Not when I young, do it? sir. I can’t recall. Yes, I usually sir. my take sister and Q it, If can recall can remember them money. it gave you who was that most of the whippings you got aas child? Q You used to take money? sister A Rosalie Modden. Yes, My sir. step-sister. And that is momma? Even my though cousin. call her my sister. your momma, she is not is who Q That is the oldest sister? momma, call isn’t it? My Yes. auntie’s daughter. I call her Yes, sir. sister. I call them sister and brother. And did ever—were ever able Q Rozella? to understand as a child that she was Yes, trying right? to do Q You took money? Yes, sir, Rozella because she awas Christian woman, respected and a lady. ever—were ever able to Where did money to take realize as a child that she was trying to to Rozella? help you to become a person? better A Where I get money? Q Yes. Q And did do by any she other way A No. I used to take money. their than —Did you? she ever fuss at You used to money? take their Q Did she you? ever talk to A Yes. anything ever do taking like
flowers to Rosalie? Q And did whip you? she ever bought her a lot of things. A whip she her children? Q Did whip you ever with a switch? Did she anything children? whip you ever Did she love her Did she show think is less than a switch? would spanking you? her Do remember ever she love Q Did show cord; something like that. A Extension an Q Well, you can think of extension she loves you’re satisfied that Q And think anything cord. else Can *25 a child? whipped she with as Yes, A sir. A sir. Q Right?
Q right. All What her husband’s was name? Yes, sir. A A Modden. L.C. Now, that were Q did those children you love? raised with show Q living Modden that house Was L.C. living—
where were Well, yes, A sir. Yes, A sir. that Q they And did ever mention really one of them? weren’t Rosalie and their children all with time? Yes, A sir. Yes,
A sir. that? would do Who regular— he work And did it. A All of them did n Q All of them? Yes, sir. job? he had a when Yes, sir. Yes, sir. you? tell they How would your knowledge, To does now? work ain’t, know, my really A ‘You broth- just my You’re cousin.” er. hospital He had been think, years, I for twelve or thirteen about hardly upset it didn’t me for TB. long. I been around so none because Q Is he home now? long when Had been around a back as little child? were there Yes, Yes, your knowledge? To Q You had been? again. Repeat All Did Rosalie feed child, sir. Back when they telling you your And did she wash clothes? cousin; really just weren’t you were one of them? she wash her children’s clothes? age. twelve or got up A No. I About years old. thirteen they Before ever mentioned that ever understand stop how to getting whippings? those Well, I know wasn’t, all the time I you Q But when did whippings those cease?
know, their brother. youDo know what “cease” means? right. So, up until you’re about sir. When mean —I thirteen, just twelve dealt think about doing not this and that. just like were one of them. Is that Q No. stop. Cease means right? Oh, stop. When did stop getting whippings? Now, children, one of those don’t never stopped from knowledge, gotten in trouble with getting no whippings, no matter how old the law? you is. of, no, not that I knows *26 Q You don’t stop getting whippings no Q your To knowledge, are out and you matter how old are? about good citizens? you A If your roof, live people’s under Yes, A sir. you don’t. your And to knowledge, you were ever Q All right. Does that people’s roof in- intentionally by hurt L.C. Modden or Ro- your clude neighborhood live, you where in salie Modden intentionally, just for the know, place you comfortable jail- sake of hurting you? house, the penitentiary? That is the kind neighborhood, A isn’t it? Depending That is where you on what talking are you living, are isn’t it? about. Yes, sir. Well, then, you what talking are about? view, your you just From point of are Well, whipping me or what? going get whipping regardless of what Did Modden, Rosalie or L.C. —did happens. your understanding? Is that from your point view, ever do anything Yes, do, yes, sir. Whatever
intentionally to hurt you, except to disci- pline you— do, you Whatever you how ever far go, you going get are a whipping. And do any way know of to stop Q —for something that had done? from getting those whippings? good. sir. Be Behave. right. understand or did Well,— you not why you got understand whip- Stop doing things doing. I was ping every you got time a whipping? child, That was as a Willie Mack. are certainly telling not this Q You understood it? jury that whippings stopped would have getting from to the penitentiary for Q You understood it real clear. robbing, your from child- people a lot of Q That’s many so can remember hood. How in somebody think if had come people? then not have whipped you, you would each right we lived around A Because lady that in Silsbee? robbed down neighborhood. in other me, somebody stopped IfNo. them, weren’t were close it. that came to before I did me stop require somebody else to doing doing from did in Pollard you tell us what Will there? group? did in the your group and what Well, burglarized a store. we That is back Silsbee? first Q Is case made? Now, recent let’s the more then, Mack? How Willie old events. six- just I had turned —I was Sixteen. going Do remember to—all jail stayed until seventeen. teen. tell Do want to us about how opera- there at that was Pollard along Mr. Patton? tion? older Mend there What gang ran with? *27 Q burglary? That A Pollard. James Q Pollard? jail? get go Pollard No, Q Okay. Where did meet old James Q He didn’t? Pollard? to Pollard because of happened What A At school. going burglarize his store? old How was he? give up. A I would not him Oh, about fourteen. me? Pardon you, How old were Mack? Willie give up. him A would not A About eleven or twelve. him up? You not give would then, like he a lot Back seems was the others. sir. He and you, than older didn’t it? said, I am Q Is is what that what asking you? Well, meet Pollard? how Well, Me, yard. on the school James him, Well, being protective weren’t Pollard, Davis, Davis, Poo Rocko R.C. you? Jedd, Davis, Jerry Jerry Jimmy Jedd and mean? What Oh, was a there was a lot—there Wilson. Well, up? him give didn’t together. us
lot of A No. I going ain’t No, sir, to do that. because wouldn’t tell it. Q All right. him, All right. feel, sheltered And did ever back child, when were a that it would be good somebody to have your on side there in Rosalie and L.C. Modden’s house? Q Did Pollard ever step up and take responsibility being for opera- on that ever have anybody your tion with side back kid; when were a little cousin the L. C.—Rosalie Modden home youDo know where Pollard is now? with six other kids? A Sir? I had some kin my folks on side. Do know where Pollard is now? him, The last time heard of where was Q they grown Were people? he? Yes, sir, but she dead. A Penitentiary. Q Are talking we about the little kids? many How times had he been to the Oh, I really no. —no. penitentiary? all would in fights A I can’t count them. kids, as anybody that would youDo really know? take side? Oh, yes, sir. Effram Edwards. He is dead now. Q All right. go Did Pollard peni- to the Q How tentiary from old was he when he Silsbee? died? A I don’t know. I wasn’t—I A I don’t know. penitentiary when he died. Q Did go Pollard to the penitentiary be- *28 Q All right, you sir. Let me ask this: you? fore child, you When were a how did Rosalie and L.C. Modden punish- issue out their Q You went to the penitentiary? you ment to all kids? they Were fair to Oh, yes, sir. Q All right. Were there some peo- other ple that were running with Pollard and Q fair, being And in if there’s two of you— all fighting, you get both of the same kind punishment? of If I was I wrong, get the Q even burglary on the of that store? I whipping. If was right, she whipping or he. any people get caught? these y’all When the two of fight- kids were ing, neither one was in right, neither one wrong, was there? And did get punished of them for they did? going you were still get Q Was while situation, would both Q In that school? whipping? Yes, sir. Yes, sir. then? old Q How were jury trying this to tell Q You’re not even raised and Mrs. Modden that that Mr. fourteen, or four- thirteen I about A was differently? you any treated teen. That is object. MR. GOODWIN: the same at or near was that
leading suggestive. met Pollard? time No, THE WITNESS: Almost. THE Sustained. COURT: right? me. Is that Q Was that —excuse me They treated THE WITNESS:
like treated— age; about the same they both Q Were When THE Excuse me. COURT: than older stands, he is lawyers it means one of Yes, sir. will, objection. If to make an going objection me on the before let rule Jerry Angel. us Q And tell about it, that means answer. If sustain all do? What question. If overrule can’t answer know, go Oh, used we we was— it, can. it means some- pick up, in the store THE WITNESS: want. thing we ques- THE Ask next COURT: pick up? it do mean Q What tion. it? steal mean you. MR. Thank ASKINS: Yes, sir, it. steal Askms) Now, you have Q (By Mr. Q Shoplifting? Pol- that was like any other friend it can call that. sir. You lard? just it called Is that what Jerry Angel. up? picking stuff called was that? Where stealing. just A I said A In Silsbee. Q Stealing? Q When was that? Yes, sir. *29 teenagers then. A We were taught you Q right, sir. Who Well, after or Q was that before Pollard robbing? stealing between and difference Pollard? right that now. I can’t recall on A That Pollard. was before you did that as child or Q you Did learn Well, jury and— Q you tell this about man? grown as a learn his name? what’s man. A Grown Jerry Angel. Do taught you that? was it that Q What Jerry age? Q you same know? you Were Well, I hear really I don’t but or A years I about
A No. think he’s two it. in the talk about penitentiary people me. years than three older Q you No, Okay. After went in store and A sir. I knew it wasn’t. burglarized it with Pollard and other not, Q You didn’t you? knew it was boys, you you have—did into break A That’s other stores? Q That grocery store that all broke from, stole into and know that was alone or by yourself Were or with not store? somebody else? I know it wasn’t.
A Me and James Pollard. I mean Dalsie Q Did know doing were Eason. you did it? when drug That was after the store? Where did break into at this time you go anyhow? Did on in there thinking about? grocery store. up Who came breaking with the idea of you get caught? Did that grocery into store? Jerry A I think Angel. Did turn yourself ever in? Well, make it simple. Was sir. was of a little kind nervous stealing anyhow. Breaking about in. you quit by then, stealing Had stuff just stuff stealing breaking without and Q Why about stealing nervous entering holding somebody up? or anyhow? Yes, sir, stopped when sent me realized, Because know I— penitentiary. .to know, that I stealing. ain’t used to stealing? For Q Back then little child? right up to the time went into did, robbery first ever grocery store? where was it?
A Silsbee. anything ever steal from Ro- up Who decided—who brought salie? idea breaking burglary of the of the store that and Pollard went into? Oh, like nickels dimes. A James Pollard. from? Where piggy something. Out her bank why you just go? not purse? ever her into A I don’t know. *30 Q you doing, You what were didn’t knew
you? Q get ever caught? store,
Q Q your Stealing pennies You knew wasn’t her and nickels out of bank? piggy the Eason. Dalsie my sir. For friends. friends? Q For Eason? Q Dalsie Yes, sir. you got to when Q happened What Q E-a-s-o-n?
caught? Anybody else? whipping. agot A I that, really. all of A I remember can’t the gave you whipping? Who out find Q Where did —when L. A Rosalie and C. burglary? that to do going you all were Q Both them? o’clock eight A I about seven think got—all night. We sir. Sometimes. stealing from talking burglary? I’m about for the time did do What the bank at one purse. piggy I mean they had Oh, nine or ten because about time. the street police right across Oh, that, Rosalie. on and did Dairy Queen and we went persons watching us. but had two we Well, you stealing what did L.C. catch whip for? had what? thing. A The same watching persons outside had two We us. piggy The bank? that the rea- ever understand watching? Were getting whipping was son were stealing? because you supposed do? What door. Well, lock off back I took the be might Do think that what way to be a little bit nervous Okay.
caused about Who decided breaking grocery somebody go budding? into else’s into store? in the After couldn’t did. we around law. We went front —we saw the the lock. way and I saw the back will, Mack, If Willie first to the for the time? go penitentiary front go in the who decided way? Burglary. A James Pollard. Q Where? you all—where were
A Silsbee. And while front go not to in the you decided burglary came us how that Tell about way? down, just of it. all until way in the front going A We were A James Pollard. street in front law across the we saw the all was with Who store, there Queen. From the Dairy Pollard, Me, Eason. James Dalsie crossing Queen be Dairy front of. that Dalsie Eason? How do do *31 Q And who decided go through not to the jury, Tell this was front with police there at over burglary penitentiary went to the Dairy Queen? on?
A I did. long How did stay over Q You did? penitentiary? Oh, thirty about months. So, you were looking out? was the When next time—when—what do when peni- out of the tentiary? saying You’re not that James Pollard look, told Went work. Q Where? No, A In Silsbee at the hardwood mill ’69.
Q And who go decided to around to the back? 69.
A I did. Me and Dalsie Eason. Highway That’s 69 South? Q Where was old James Pollard? That’s—I working No. in ’69. A He was with us. Q In 1969? Q Okay. But he touching wasn’t A Yes. lock, was he? Do remember went in No, I did it. penitentiary? know about like things finger- ’66,1 think. prints then? THE COURT: Excuse me. Is this Oh, no, sir. Fingerprints? just good as place as to break for lunch?
Q Fingerprints? MR. ASKINS: Your Honor. THE COURT: I will assume Q You didn’t? questions? of other number MR. ASKINS: Your Honor. THE gentlemen, COURT: Ladies and find out them about after we take our will noon recess at this time. that? one-thirty. You are until recess You are admonished that are not Q You still don’t anything know about this case among yourselves discuss fingerprints? anyone you’ve else until after heard all evidence and retired to consider Right now I do. your verdict. finger- Where learn about one-thirty. until You are recess prints? (A recess was P.M. taken at 12:00 Penitentiary. P.M.) until 1:30 *32 in the Is Miss Modden the THE COURT: BE IT REMEMBERED that fol- will, stand, please, If hearing for The courtroom? came on before lowing Modden, your right hand. Wilson, and raise of Miss Judge the Honorable David V. Court, Angelina County 217th District (Miss by duly the was sworn Modden Courthouse, Lufkin, Texas, 30th on the Court.) 1985, day January, commencing at 1:30 may You be seated. THE COURT:
P.M., to heretofore taken. pursuant recess George in the hall advise Would Garrett,
Houston, Larry Lee Edward P-R-O-C-E-E-D-I-N-G-S Bouton, Bryan Freeman Tomas and Joe they may be excused. THE Are there matters COURT: THE BAILIFF: Yes. up bring to the we need take before we get the ahead and THE COURT: Go jury back in? in jury then. ASKINS: Your Honor. MR. Yes, sir. THE BAILIFF: approach bench?
May we courtroom.) (The returned to the jury may. You THE COURT: afternoon, ladies THE Good COURT: Honor, Your we are MR. ASKINS: to noon re- gentlemen. Prior and list, please call our if it ready to witness cess, testifying. If defendant Court, per- those trying eliminate stand, back to the witness will come sons— please. Why MC FARLAND: don’t we MR. may proceed. all the the ones we want dismiss you, Your ASKINS: Thank Hon- MR. rest of them? or. That will be fine. MR. ASKINS: Modden, keep We need to Rosalie MODDEN WILLIE MACK o’clock,
who here about one who testified witness stand and resumed the McGrew, Leroy has not been sworn in. as further follows. McGrew, Young Linda Lonnel Evie Kartye. and Joe EXAMINATION DIRECT Okay. THE COURT: Who does CONTINUED exclude? QUESTIONS BY MR. ASKINS: Wil- MR. ASKINS: That excludes Q Mr. Modden— him ton—no. didn’t have here. We Houston, Garrett, George Larry Lee Bouton, English. Arthur We
Edward first case was the nature up, him. never shown subpoenaed He’s for? penitentiary went to so doesn’t need be excused. Joe Burglary. English? give Tomas. Arthur youDo recall when was? THE Yes. COURT: jail ’67, though. ’66. went Bryan MR. ASKINS: Freeman. ’55, ’66. stayed jail until mean one on sorry. we would—I’m There’s to keep, the list we need Paul Goforth. prison then went on with- jail. that cor- being from Is rest of out released MR. MC FARLAND: The go. them can rect?
328 sir. Q What was his name? Oh, Philip is Taylor. his name released, recall, as I later, thirty months as recall? Taylor Philip go Did penitentia- the ry for that offense? A No. Q And then your trip on second to the
penitentiary, that when was and what Did on him? tell for? No, A Burglary. Q Why did not tell on him? burglary Where did the occur? A The same reason. A Diboll. uncle, Young And Wilton is he not? Q And who was burglary involved the you?
with feelings And what kind of have do Young Wilton and James —I mean family for Young generally? the Taylor. I forgot last—his his first name. They my people. Young Is that Wilton the same Wilton Young here in testified court Has Wilton ever been in peniten- with the you? tiary, your knowledge?
A Yes. Now, robbery on the on murder IQ mean yester- here the courtroom for which have been found guilty— day? excuse me. Let’s come the next event you were in. arrested, Q Was he ever tried or convict- What was the—what about the rob- ed of that offense? bery down in Silsbee? IA don’t believe so. A What about it? police ever tell that Wilton Q robbery down in Sils-
Young was in that involved case with bee? Q Why not? And was that the first or second time you went to penitentiary? Well, I they give first, feel like me— A The third time. They won’t tell on nobody. got to get them before—in order to me. long As Q The third time? me, do something they get as I will all
put weight me. The last time went Q Well— penitentiary? A No matter would who it be. go the other man to Q was involved in that —did Who penitentiary? offense with A Myself. talked Now, anybody was there one? by yourself on that
Q You were down Sils- robbery about *34 bee? you jury hap- the what Q And will tell No, A sir. pened in that case? Q you did it? Before robbery place? take did the Where sir. A In Silsbee. that rob- you decide to do Q did How Q Silsbee? Where bery? A 7-11 or A I think —I don’t know. tell Oh, you can’t really I decided—I IAll a store. what. like it was. Q not?
Q Why And do know whether robbery a man or the that victim mean, just I A I robbed them. woman? carrying Q long how had been A A woman. it? you robbed pistol before anything, if Q you using, what time. For some robbery? as a on that weapon Q Everywhere you went?
A A pistol. No,sir. No, always it stashed I needed it. until Q And did shoot woman? Q always You what? it. always it until needed hid with that Did threaten woman “stashed”, you? didn’t You said
pistol? and take you get pistol did Where it at her? point ever robbery? you did the it with before I’m saying— way: this When did Let me ask a threat? You don’t consider that carry pistol and go robbery? go do that like threatened the Do feel again. A Repeat that woman? robbery. at the How pistol had a your body before long had it robbery? did Do feel way: I’ll it this threat- put pistol pointed ened when it. A I went you get pistol, did Willie Why Mack? example, you feel threatened For did rob. To completely when the enough cooperate under that lady got you out from deputy know you already at Kirbyville? bed down to rob? going gun Q Well, was the Where hidden? feel she be embar- would go get help rassed to if all that’s she had my Back behind auntie’s house. on? day night What time of was that? night. About nine or ten o’clockthat you go Where did there? from Okay. went and robbed that A In project. store, lady at you get How to the store *35 A Yes. place? first Q you you And did make her do —did A Walked. anything you other than give money Q you away? did get And how from register? the cash A Walked. sir, Yes, A I did. Q walk you Did or run? Q it? What was A I ran. pull A Made off her clothes. Mack, Q you can Willie drive car? Q you Did make off all pull her of her A clothes, Mack? Willie Q you you just Did never learn how don’t drive? Q What clothes did still she have on know, A I don’t I and don’t know how. you stopped when making her take her Q try Did ever to learn to drive a clothes off? car? things. Her brassiere and Yes, got sir. And a ticket. Q Well, she underpants have her on? that? Where was Yes, burglarized A In Silsbee when we have a slip Did she on? bought my store. I went and me a car of own. slip. sir. White bought You it with money, stolen let her on? leave it though, didn’t ideas about making long keep How that car? any sexual advances at her? Oh, days. about two or three my bag. sir. That ain’t Q And is the time that length of Why did make her take her had that then? car off, clothes Willie Mack? get So I could away. ever drive Have tried to or have having figure How did her take anybody drive a teach how to car? you get away? her off would clothes let on a working telephone sir. was down company. laying cable you figure How do that? telephone ground, cable. enough away. Give me time Where? forgot his you go out with—I A In Kountze. my mom- right down from name. He lives How then? old were name. His wife is ma, forgot his too. twenty-two, twenty-three; A About Ernestine, though. named twenty-two. in there. About somewheres say pulpwood”, “haul When Then, peniten- when out truck; literally it on the haul don’t mean time, robbery of tiary that based on that unloading loading and you’re talking about lady take her clothes who made aren’t big pulpwood, stacks those off, were sent —was there. I would load years? penitentiary twenty-five for them. wouldn’t unload just them Q You would load on? you had long How free after jail? lady into robbed before went you get peniten- out of the When did *36 A About a month and a half. tiary the last time? Q the car? happened you on What A ’83. that? Was that before that was before you Do remember you during that anywhere work of ’88? Christmas half month and a time? A the December 18th. December 15th. you in gone And when? work, you Where did Willie Mack? the twentieth- August, August ’74. A At Louisiana Pacific. something, ’74. you doing What were there? peni- in were the While Tailing the saw. try let this: How old tentiary, well, me — penitentia- in the were when went Q Tailing saw? the ry first the time? Seventeen, I think. off pulling Does that mean boards as December old were last how through went saw wood? got out? Thirty-six. other work have done What Q Seventeen— going before to the penitentiary outside Oh, thirty-five. anytime the first first before time— you’ve in the two times time or between Q Thirty-five? the penitentiary? in
been cable, Laying hauling telephone down thirty-five, age age From seventeen pulpwood. That’s all I remember. little on the many you been years how have hauling pulpwood, who When ground penitentiary? outside you working for? years. A I think about four forgot A I He fives that man’s name. Q Except hauling pulpwood for down from house. my mother’s laying working on the Louisiana Pacific cable, peniten- out of the before came pulpwood? How did learn to haul tiary time, the last work have work Packing What was at Mims done? Company? cow Spreading out hides. Working Company. at Mims Meat Q Spreading cow hides? out out, That was after wasn’t it? time, yes, This last Q And anywhere worked else
Q Okay. just Let’s cover that. any kind of work than that outside You worked at Mims Packing Compa- penitentiary? ny after got out the penitentiary? A I working Cameron. What did do for Cameron? When got out the penitentiary, A That’s at glue the sawmill. That’s the where did come this last time? machine. Young Jessie Lee Diboll. Q Where? Q All right. worked for Mims Cameron, Texas. Packing Company when? Q Camden, Texas— A A little before Christmas. About three days before Christmas. Q you’re about. talking *37 you When did quit working for Mims? That you got was after out the
A I can’t It in remember. was ’74. I last penitentiary the time? mean ’84. Yes, A Q So, it was over in sometime ’84 when Q go Let’s now to the you back first time you left Mims? in penitentiary, you were the tell this A In the summer time. jury you any whether or not disciplin- Q you you Do why know left Mims Pack- ary reports placed against you your in pen ing Company? packet in penitentiary? while were the Oh, A I getting job was another at Corri- A I don’t couldn’t—I understand what gans. I mean in Cameron. talking about.
Q In what kind of work? Q All right. any good lose Did time? A Working on sir. A lot. gluing the machine at whole the mill. Q What for?
Q What kind of machine? A Fighting. Gluing machine. Q first Was that the time were there? Oh, glue Glue. machine? about, fights What the were Willie job? Did ever Mack? Well, told, I was I going was Q How long job? work at that leave—“I come here like a man and days. nights, Two leaving Two mean. am a man.” like name. His I—I know his last by that? dude do mean What Thompson. is last name out of to make a They punk wanted in the working talking about Are me. field, Mack? Willie to do that? Who tried the telling I’m about I don’t know dude. fight. preserv- in were successful you. to ask Are is what wanted That ing your manhood? and the you talking the lead row about Yes, sir, I was successful. line of convicts? front knowledge, ever And it—lose row? row is the back And tell A No. peni- in the
Q during any time one of those rows anybody any tentiary? what, hog? a tush Them two. No. line? those two fighting That one incident of as Just was regards first time penitentiary. of those in either one ever Were disciplinary any receive other line, lines, the tail head line or the lead any- lose reports fighting? for line? good fighting? more time for it. I never did like Oh, yes, sir. always in the middle? You were there different reason for A That’s *38 the told us for this time than reason came about? fight Tell us how now? Tom, Well, was the name he this dude Tone —I this dude named lead row and you give another instance of Can us me, And name. the other dude’s forgot good why? time and when lost Eddie Paul and named Johnson dude know, time, morning lead Bray the Well, time, they had the lead —in row, running they up start and tell row know, they You row and the tell row. know, rows, you so we and down their tough supposed guys. to be got— they? Who were is “we”? Who and the tell row. Lead row Me, Bray and Paul Johnson. Eddie Q Leroy and Tellrow? Q Okay. and tell sir. Lead the row. row his turn got hit where we And we Oh, row and the tell row? lead running. They don’t they started know, evening run the time because they sir. You the want to in in the they up too tired. rested keep jump they be We up, don’t want bad— run, them, and let them they morning front time you. If up and running evening time we start you, this jump want to know. down the rows. And so he told only us to slow That’s I one know the first him, I down. told You run “No. this morn- time.
ing. today,” Let’s run know. time, Then the second what? said,
I “I ain’t tired.” Comb, C-o-m-b, A A dude named So he up came there and hit me and I Comb—I forgot the other name. dude’s swung agate himat him. missed playing we were dominoes night. And I don’t know his name. He Q You did what? came and asked me about I tell didn’t agate, A An a hoe. him something about—did I Comb tell And I missed him. And took the out, know, about him. It come hoe from me. I hit him up side the Comb went told him say that I head and I he fell and started stomping told, punk. you know, were a Comb him. know, didn’t but went Comb back him and told a lie it. about said Q All right. you get tried a court So, playing we were for'—(cid:127) double blank of law for that matter? Q You playing were what? They took— A Double blank. Q That was inside prison, handled Q What is double drank? wasn’t it? A Double blank. Dominoes.
A Sir? MR. MC FARLAND: Double blank. that, your good lost time on Askins) Q (By Mr. Double blank? for, Playing whoever has most in So, you never taken out of the hand, their jug drinks a of water. for prison to be matter handled? That’s what were playing. we So, dude, he came—the I don’t name, know his he came over there and ever—can think of anoth- told me he to talk He wanted to me. er situation good where lost time dur- long. had a knife about that I didn’t ing the first peniten- time at the *39 So, know he it legs. had between his he tiary? said, you asked me about it. He “Did A The first time? anything tell Comb about me?” said, I “No.” Q Yes. said, I he at?” ‘Where Oh, yes, I in hit dude the head So, got he and went Comb and Comb a can. was, couldn’t tell him like it he so Q Why? they stabbed Comb instead of me. And locked upme for about six months
A He trying punk was to make a out of I because refused not to— Ime. show him I a man. I ain’t no punk. Q sorry. Go ahead. I’m Q All right. Do have A I go another inci- not to work refused back to dent that can something tell us? for I do. Oh, no. Well, they say locked off the were taken up, that means a different me ask All Let or what?
work detail then. question Yes, time taken. sir. Good fol- by not trouble any inwas of whoever the directions lowing solitary for that? you put in Were penitentiary? in the charge Oh, no, solitary confinement? Is that not, will Well, feel if days. sir. For fourteen in kitch- this incident then tell us about Now, get ever in—do en. situations where you have other dish room. Well, working I was peniten- in the fight while had a Q Yes, sir. tiary? know, in there. And, was hot day ice that because some And we wanted happened? What ice, steal- we were where always keep we name, but can’t dude’s call this ice. ing know, bull corn with always, you talked where? From him— I talked. I told way about the me back. Back the kitchen. A Out of way by mean do What talk? man. the lookout A was Yes, sir, way I talk. Q All right. big go get will my partner, he A And mocking me all the he be old block ice. everybody laughing. and time be
mad, so I side his head. up went side of his head with up You went in the dish room we carried it what? nobody sure made the door and locked day And that in there. can’t come My hand. We went give us none. wouldn’t of that end right. Was We it, find none. but we couldn’t to steal fight? house, none wasn’t to the ice went there. for you lose time that? good And did y’all were washing while Q Who is dished trying to out steal— *40 washing right then. you can A We weren’t Q And that the last instance inmates, other having trouble with recall Q I see. disciplinary report you given were where ice, no so we couldn’t A So we see good or lost time? lit- through the trays they putting started Oh, working in the yes. We up. just pile let them hole. pan tle We in the kitchen. working I was kitchen. wrong, and we asked what they It hot ice. was we needed some told them a fight? thisWas in They here. go told us to to work. hospital. My So the stomach was up. messed said, all of So, us ain’t going “We to work.” day I went to work Friday. on a I Friday evening went work that end, But I got on the all that fault on Friday I evening got work, when off me. they had to me hospital. rush to the you Do any ever making remember But knew jump better than to guards remarks to the while guard, working out the field? Oh, yes, Q Why guard? would jump
Q Did you good ever lose time for that? Because didn’t like he what said my about momma. jury Will tell the happened Q All right. Were ever—did one of those? lose good ever time for talking bad lan- Well, guard, this he is from Alabama. guage the work line? Mr.—do I have to tell it like it is? Oh, no, up to, Clean the language if want go is, anybody You never cussed yes, but ahead and on the work tell like it line? Well, my he told me momma should Oh, yes, have died when she had me. Q All right, somebody sir. You cussed line, on the work didn’t you?
A That’s when I until wait to the gate back and I jumped him. sir. Depending on who talk- ing about. Q Jumped what? who did cuss on the work
A Jumped the guard. line, where you you got— had —where Q Oh, you jumped guard? good where lost time? A You talking guards? about inmates or guard? hit the way Either good where lost time. A Inmates. happened What aas result of Q Did you good lose time because of doing that? that? They me, whipped me up. locked Fighting. whipped you? Who Did —sir? A The warden and them. fight We had a cussed them they How did whip out. name, A I don’t know they his but call Q All right. Can think other Big him Foot. don’t know his name. He incidents did while over there where hit me with his one of shoes. And good lost time? beat me the stomach. IAnd had to *41 go got I solitary, out of about twen- —when ty-something days, they had to rush to jury me Tell the what it was. into it one Satur- got a dude know, A Me and Well, also, now, people most evening. Saturday Saturday, one day I officers. call them guards. them call —one I the dude know the—I I know who don’t that was the dude cut, I don’t know but harassing kept The over there officers say I some- him that and told agitating
me. That Jerry. me and body’s momma and— tight we were I cut. And the one to you? Did what at a foot- listening we were And partners. Harassing him. MR. MC FARLAND: that eve- forget I won’t ever game. ball want I don’t THE WITNESS: Ime. up behind ning. And he walked use that word. to He hit right here now. scar got still me here, kicked Askins) I and he harassing right and fell me (By he Mr. Was stopped they they my in side. you? — my all over I had blood us and stopped, At- BT, Building that means face. Q Harassing rushed Building The Attendant tendant. the mean in wash me in the shower—I Yes, sir, harassing. of me off and washed blood room it to the nothing me, say “Don’t about told way my threw hat got I tired of it. He now.” Warden I “I say, I sit ain’t across the field. down. said, “Okay.” I ”, I say I ain’t to going going do— my mind I was up made But I had no said, going I to do just “I ain’t said. him, you something do going to work.” more two my me I cell so went he tooth- I him if he wanted to do—if razor blades and told razor —four so brush, do, that toothbrush anymore work to he can burned wanted blade, so razor melt would horse and do it his self. off the Sunday morning when went that, Q He do did he? breakfast, named of mine partner my brother told me that Richards John So, solitary. he was up locked was of that good time because lose asked, “For Ime. over there with remark— what?” for Christ- say was in cell He he sitting down in the field? Q —and to come out supposed mas and ain’t He days. for fourteen of his cell days, for fourteen for Christmas cell any- to cut Q Did ever occasion said, himself, so out so he came in the body penitentiary? while Well,”— hit man that you cut other Q Did or more jury you tell Q Will —one
times? you. fixing to tell I’m A That’s what time. sir, One tell me. please but Sunday that, So, to chow that we went jury about you tell Will eight about o’clock. around morning, please. *42 And, you I hearing been how doing been this and that and robbing IA waited until the put dude soap some things. face, in his eyes, on his I face and July 1984, On June the the of 9th up went to him and cut him up here. 9th— involved in robbery another of a Q On of the side his neck? Jif-E Mart Store? Now, you got me messed. Which one Q All right. And good did lose time you talking about? for that? Q The first one. A Yes. Q Was anything there that ever did Q right, All sir. And was in that here while penitentiary the that caused Lufkin, Texas? to be taken from that penitentiary and in a tried court law? occasion, Who was with that truth, only truth, but all of the truth? Now, I think we should ask about A say Do I it? important the most thing we that are here truth, tell is? whatever it for. Leroy McGrew and Mr. T. Now, Modden, Mr. ever isWho Mr. T? raised point anytime since it be- came clear Was a man that were intro- you were inno- duced as killing cent of the Lawrence— of Deborah Daven- port? Wyatt. Lawrence Repeat again. Wyatt? Lawrence you always Have said in truth A Wyatt. pronounce can’t that name. Davenport? killed Deborah that, Regardless of where did meet Leroy McGrew? where I meet him? well, will tell us know— why Davenport? killed Deborah say when Leroy meet McGrew, the first time ever? A Because I wanted no witness. Oh, over at his house when was Q Pardon me? staying apartment. there don’t
A I didn’t no want witness. know what the apartments,. name them Q Where did you get idea of not though. witness,
leaving a Willie Mack? Q Well, Leroy meet A I been around a lot of dudes in the McGrew?
penitentiary. They talking been about A I think’84. gangsters,
them you know. It after peniten- out of Q Gangsters? it, tiary, wasn’t Mack? Willie Q This last time?
339 in him sometime You said met time him from the see winter. occasion see Q And how—did until that time him in the winter met Leroy often or seldom? McGrew house, drink- you went over to Roosevelt’s Do know means? what seldom him? ing beer with him a lot or a little? see him, I think the time I saw That’s when he particular at the time A Oh. Not time. second hardly I didn’t staying over there. was right. All Was much until he moved see him that introduced? I Culverhouse seen Over on Culverhouse. the first time. I was introduced A No. him of the time. most the first time? Q Okay. Where was Was it Do when was? Was remember apartment where he at the was that over or summer? spring it living? Well, winter time when met— was apartments. in staying was when he to him? Q Who introduced you get Leroy any after with Young. apartment? met him at that A Roosevelt kin to Young Roosevelt
Q Where? Q What is he? Then we over Over his house. went my auntie’s house. A Uncle. brother, Q Is he Wilt’s too? Q Who? A Roosevelt. at the time? Leroy working Was talking July 29th. Q I’m not about time, I particular That A I don’t know. me neither. don’t know Q Then when? you working at the time? Were living right A When Roosevelt was At Mims. living apart- was the same there — Do worked you remember when Leroy. ments. I mean the same area as Mims? went over there and around We sit beer. drank some at Mims? When did work And that the winter
time? the first A December. About December in there. up somewhere or It summer. A No. was you finished is about when time. Summer working at Mims? the first time before And when was Oh, no. that, Leroy seeing remember him, being impor- more working McGrew at Mims? you quit When did tant? it was know. I think don’t time. the summer really A can’t can’t remember.
Q right. All you Q Well, Sometime while did you “yes” answer me because Mims, then, working for you Leroy you met or understand what said? Roach McGrew? A Say again. sir. Q right. All anything Did steal with Leroy McGrew before did—
Q long And how was that before all went do robbery? the first No, Q robbery? first —the pretty good It awas while. No,
Q anything Did do illegal else with Leroy or Roach robbery? before the first Q right. All anything steal with anybody Wyatt? else other than Lawrence No, No, Do anything any remember about When did steal anything with air conditioners? Wyatt? Lawrence when, A I forgot it night was. right. All When —or what is this Was before after the Jif-E Mart conditioners, about the air please, sir? robbery? Say again. A Before. Leroy Were involved with in steal- Q What kind of car were in that ing air some conditioners or not? night? sir. Not with him. A Brown Cadillac. Q You weren’t? car it? Whose A Mr. T. Who were with? Do ever drive? IA can’t drive. T.Mr. up stealing Who came that idea of Q Mr. who? the air conditioners? A Mr. T. A He did. Wyatt? Names Lawrence didWhy you go with him? me money. Make a little Q Is that true? stealing Does seem natural to A What mean? right. All You never stole air Q Is it usual for to steal? Leroy? conditioners with A For me to steal? Q Yes, sir. ever steal anything else with occasionally, A Not no.
Leroy before went to the Jif-E Mart Q Well, what did do? When 9th, July it on robbed 1984? went, you did, you tell us what and Mr. Wyatt? with that set? helping T. for —Mr. air conditioners helped A I him tote the in the car. kind of air took—what Who Q How much? was it?
conditioner thirty-five, A think $40.00. *45 A know. I don’t money came the Q you know where Do Well, a air condi- it central from? Q I mean was a unit? or it window
tioning unit was No, sir, A but— A Window. sorry. I’m Q go ahead. If don’t— in a box Q sitting take it—was it Did got He Well, to this store. went we open? was it? store, or out the Where a brown long envelope at this him a envelope. know. It was really A I don’t Repeat your answer. THE COURT: I know.
window. don’t days af- About two THE WITNESS: like a Q it in the window I mean was know, it. About two ter, Red did window unit? days. in the window. Sitting Askins) Well, get how did Q (By Mr. Q it? unplugged Who get T. that occasion with Mr. back A guess I he did. money? walking on the Front. I was you there? On Were Front, stopped and seen me. and he was, you I out night time? daytime or Was by car.
front Day. you all do with right. All What did that air conditioner? him where? went with Well, it, know what he did with don’t forgot the store name. but we went— him? someplace with go in the car? Did load it Was it store? guess A I it is store. Oh, I know. We went yes, house, it to house. carried it—Is house? Whose A I never inside. been T.Mr. go the store? Q You didn’t inside you unload it from the A Did car? T.— with Mr. you get in car Did actually happened Do know what y’all that air days after stole Q —two conditioner after that? with that air conditioner? but— any money T’s in Mr. you go receive to some store —did from— any money
receive car? Q You don’t know where Q Okay. the store was? Leroy’s When went over to plan robbery, house that first who was is, A I know where it but I don’t know there who there with and Le- the, you know—it’s on 94. I think that’s roy, and planned robbery? who where it is. Repeat again. Highway On 94? you get Leroy’s How did house? A Yes. A Walked. Q All right. And did Mr. T. out of Leroy Was there? the car at the store at 94? *46 Q anybody Was else there?
Q Did anything he have in his hands A Linda and her kids. when he walking was into the store? Q anybody And did up else come work with all plan robbery? Q Did he have anything in his hands right not then. walking
when we was out of the store? All brought Who it up, that Yes, sir. A long envelope. brown going robbery? there was to be a see what was long inside the Leroy. envelope? brown Well, Leroy bring up? how did A Money. is; He told me he know where a store you get money? of that good store we can hit. Q Well, you go along with him on Was that got where that money that idea? you told already? us about Q And who worked out when were going to do it Mack-, going and how Okay. Willie where the do it? Did you work him
plans on robbery? made do the first plan? A Over at Roach’s house. Leroy That is McGrew. Right? How did work it out with him? in talking going You about or store Q You testify heard his yesterday, wife what? store, in going how to A Yes. there— Leroy Is that the same McGrew that A INo. He didn’t. was the one. I yesterday? testified mean that —was Q —how to leave? that the Linda yes- McGrew that testified A He was the one that all that. furnished
terday, Leroy McGrow's wife? caught He is the one—he some dude a blue car. don’t know where lady Same yesterday? that was here looking pistol went. He was for a or something; guy get one for him or day night was So, time of Q And what find He couldn’t none. something. that? T. had Mr. He up again, look he Mr. car with T. was A What? from the street standing across was Leroy and car with you got That Front, the shed when under Mr. T.? up.me
picked late. It really know. was A I don’t left already I take it had it then that time was right. What up to gone had Leroy house and McGrow’s you all Leroy’s you had been Front? robbery? to do the decided again. A Repeat that they picked the Front and in?T. Q And car was Mr. whose you up. A His car. well, Leroy whose car Whose car— that was it time before Q How much in? Leroy’s, working out over to you had been *47 A Mr. T’s. first store? to rob that you going that you that anybody there saw for Oh, was over there we been —I get evening? that with them while, with them. sitting down good time it had you remember Do I somebody else. Houston and George Leroy’s house? you got to been when forgot. evening time. A It was in the Q Okay. George Is that the same Hous- yesterday? anything here to drink you ton testified had Okay. Had day? No, you George Houston Q Do remember drink that anything had to you Had get you you or should telling whether not the Jif-E you rob night went before in that car or not? Mart store? A That first store? George Houston’s advice to Q What was Q The first store? you? No, Told me don’t in the car because ask this: When right. Let me All get me in Leroy company. He’ll bad first penitentiary you went on. Leroy me to come trouble. And told life, your that time time, going back to — any up to that Had been trouble did drink? time? No, sir. you had the first time Q When was beer, anything else gin or vodka Well, air steal that gone drink? T. that time? by with Mr.
conditioner A The second time. Yes, sir, it wasn’t but that — Q The second time what? nothing to me. got I penitentiary. Oh, When out I— Safeway. how much Excuse Not did drink? me. The Jif-E Mart. too Not often. A Gamble. Had drinking been time Q All right, sir. And isn’t that the Jif-E lady, robbed that where made her take 94, Street, Mart on on Frank that is kind her outer clothes off? of close to Safeway store? right, Q All right. You never robbed the Safe- much, A I don’t drink know. way store, did Silsbee, When was hardly never did drink, know. really, you Q All right. You said a while back Would same answer apply, that well, I don’t know that did. that — you just gave, you got back here from time, the penitentiary the last What down in did use to rob the—what Diboll—have weapon had—since out did have at the Jif-E Mart time, the penitentiary the last store?
drunk a lot or a bit? little A A pistol. I don’t know what. I drink more this time than make, Q You don’t know what do the other times. A No. What drink? *48 Q big How that pistol? A Beer. a or gin, Sometimes little vodka A Pretty good size. mostly but beer. Schlitz Malt Liquor. Q your Hold up jury hands to the so Q How did drinking think the affect- get can a rough length. ed Well, the barrel was that long. about A It affected me a whole lot. Q From up the handle to the front end— Well, Q if you beer, a can have can A Yes. feel it? it, Q —of long how was it? thing? The whole Q If you beer, cans of can you two thing. The whole feel it? A About like that. Oh, yes, Was it one those—-did ever see happens What if have three cans Clint picture Eastwood show? of beer? A Like one of them. A It still me. bothers big? Was it that Q Sir? just
A It’s I’m not the same Willie Mack. Q The kind Clint Eastwood uses or not? right. All What do with the money out got of the first rob- bery, Safeway robbery? Q What color it?was sir, dude’s not over but A Silver. house. Q Silver. Oh, apartments been to those no. You disguise use kind of And did before, you not? though, had cover-up? robbery over to you went time that On first Q What? you go see? who did apartments, those they call it. stocking cap, A A whatever my cous- Well, with over there went you get that right, All Where did in, go apartments to the we but you receive from?
pistol? Who did from. pistol where we you, the just asking first Leroy. I am apartments, those time went over to Leroy pistol? Where to see? go who did A I the dude’s name. don’t know the dude’s name. A I don’t know ask this: does let me Where your cousin you go to visit Does Uve in a house? person this live? got the over there and after went apartments. lives in some—in some He pistol? apartments, these do know Oh, before. that was highway apartments those the main where to see cousin. went When are? there. cousin went over my A Me and just say by A All I is Diboll. know Q To where? Diboll. his. A To a Mend of right. All And do remember hav- is the Mend? Who ing apartments once or more been those his name. I never seen A I know don’t times? Been there one or more times? him. *49 A One. same he live in the Q right, All sir. Did Q was that? You never—and when that— apartment the was close area where me and Mr. T. went Leroy A Leroy got pistol? When the where pistol. there and the Yes,A Well,
Q any did Mends that you have Q Close it? apartment— lived in that Yes,A Well,— over to Q And on the first time went go in- apartments, did that —all those Q —project? apartment? side an I Well, my a nev- partner. cousin had No, in of them. I never been none who he him. don’t know er did see went over there looked like what. We Why go over there Q right. All day. one the first time? cousin, a Well, my partner had over you, he Well, asked say is what —that get can to see if he and he went over there
had ever over there before been beer, can of beer. pistol? get went to Who is cousin? driving? Who A Lonnel. T.Mr. All right. any Did he drive all apart- beer? over to the ments? gotWe can. one Between the two of Did he ask for directions?
A The three of us. A I don’t know for occasion. The three of Well, Do you the car. remember? Q Got one can of beer. A I don’t know. youDo know who furnished the beer? Q Okay. Who went the house or went A I don’t know who the dude—that dude. inside? Q Was ahe friend of Lonnel’s? A Leroy. Did and Mr. T. leave the car? Now, second time stayed in We the car. there, you went over went over there with Leroy a pistol Did have he when went T.?Mr. apartment? INo. had been over two or there three times before then. Leroy pistol came Oh, you had? apartment? out of the Yes,sir. Q Always over the same friend— know who the man was that getting pistol from? Q —who furnished beer? night and Roach Where did get the idea it was and Mr. T. together, went over there a white dude? ever been there before with Leroy Because it. said them? say? Leroy What did *50 A said going get pistol He he was Q right. All And did know where from a friend of who his was a white dude. when going go left over to that apartment?
there Q right that Was before he went there to get it— No, A sir. You I didn’t have no about knowing occasion where we were A
going got until I over there. Q not?—or Q Who knew where going? A Before. Well,
A Leroy and T. Mr. know. pistol He the went over didn’t. Street, there to the Jif-E Mart on Frank Q Why you say do that? Right? close to the loop. three times done it right. You Q All correct? Is that now. out of his ear? get T. ever Q And did Mr. times? mean three do A What No, sir. robberies Well, three you done get out ever Leroy Did McGrew least, haven’t car? that out? been A Since I’ve No, you got born? sir. Since car? you get out
Q Did Yes, sir. anymore? Have done the car with out of get pistol? Are sure? Yes, sir. positive. I’mA you go rob that store? Now, night at the on that right. All Mart, it. you divided Jif-E money? you divide did Where store? is the Jif-E Mart in his the bed house. On A At Roach’s bedroom. money out of you get any anywhere? around Linda Q Was robbery? In the front room. Yes, sir. up? money divided see Q Did Linda anybody? hurt Q Did No, sir. in Linda’s and the television Q Wfrere is money get?
Q How much Leroy’s house? right now. room. really A I don’t know A In front door in the front all walk And did money? Q Who divided the back door? Me. A Front door. Okay. supposed Is that what is Q This the first time? highjacker? as the do Yes, sir. it—call robbery? This is first do yourself call doWhat Yes, sir. that? Now, Leroy T. and did Mr. robbing. That money? part of their Q Just a robber? *51 Yes, sir. it, you divided how you remember Q Do the triggerman robber or the got? Is the much one how each money? the gets that divide one hun- Well, T. the gave I Mr. don’t—I but told he didn’t want me because dred always A I do. fifty. gave I him a hundred. Le- A About eleven.
roy give Leroy. don’t know how much I —I Q In morning? kept biggest I portion. A Yes. telling he was me he needed Had anything to drink the more, know, some money some for night before? rent,
his was, rent money. And his wife know, know, you pregnant. — Q Okay. Threatening baby? to have the What did eat from the time got up morning daylight until the next morning? Q All right. And this out of the Jif- Well, I robbery— things. E Mart like a lot of sweet I don’t care too much about food too much. I things. Candy like sweet and stuff. Q —you’re talking about? Q Sweets? Now, get when first into — planning involved in the and commission robbery ended, at least for Q eat any day? sweets that Davenport, Deborah that night July IA can’t recall. 29th, 1984? any eat that day? food A Leroy. I ate breakfast morning. Q Where? My auntie told me to I eat breakfast when A At his house. up. Q When? How much breakfast did eat? A That same—that day. same That eve- IA pretty good ate a amount. ning. What did have? evening? What A Eggs, sausage, toast and some butter. IA forgot day it was when we did Q Did you milk or anything it, really. else? you talking Are Saturday? about that Oh, milk, yes, your— right. That was you all hadn’t talked rob- about house. Auntie’s bing the place before that? Honor,
MR. Your I GOODWIN: ob- Your auntie’s house. Was that Clorine ject. a leading question. It is Cartwright? MR. agree, ASKINS: Your Honor. I will do the best I can. deceased, Q She is now isn’t she? Askins)
Q (By was, Mr. If that is Saturday, then, Saturday start let’s 29th, She July has died since morning. hasn’t she? you get up What time did Satur- 28th,, day morning, July 1984? don’t but know she’s dead. *52 there a conversation right. All Was anything you have else right. All Did among you Diboll? all? day you got to before to eat you mean? A What I something, I had but A I think. what it was. We had
can’t remember Leroy and Linda you talk to Did filling station where stopped at same Leroy? you talk to or did kids it, the first one. robbed we girl Well, Leroy’s little I with played there, always I go everytime I because Yes. I her, because girl the little with play with I be- what was. A I can’t remember like always kids. gas some there. Leroy got lieve kids, did never bought something to eat there at Q You sir, really. supposed not on Frank Jif-E Mart Street? one, it’s mine. say Ibut haven’t Yes. play- you stop you play did —when Well, you don’t remem- have— little decide where ing girl and with the any- ate. Do remember ber day? going to do that you were —what after all thing ate else Leroy I went over when stopped at the Jif-E Mart? I went there, first time when that’s—the there, agot me he told over that’s hit. good place to Then, go All back to this: right. let’s o’clock, to hit? your got good place fed a After eleven auntie He dressed, you got And I take it breakfast. A Yes. your in there. put clothes sometime go you all some- All And did Leroy you get time did What day? place else that McGrew? They Diboll. sir. We went to It was din- really don’t know. after by came the house to me. ner. Q Who? right. Where? Leroy family. his
A At I walked his his house. over stay be- Leroy’s at long How house. left, pick you so could come fore up at house? Q Do remember who was there? Oh, an hour. about anything there? eat over far far sorry. I’m How did —how mistake, I If I ain’t made over to Le- Cartwright’s it from Miss think I drunk a beer. roy’s house? Q Where? a fifteen minute walk.
A Ain’t but about Leroy’s If haven’t house. Over Q Okay. And who was at— mistake, I drank a beer. I think made A Linda. you were Linda around while Was Q —at Roach’s house? drinking that beer? Linda, wife, his and kids.
Q Did she you drinking see Q the beer? That her sister is to married Roosevelt Young. right? Is that Yes, Q Are satisfied that she saw she, course, Q And married Leroy drink the beer? McGrew. Q Leroy have a beer? Q Was this a gathering together of the Young family? Q And did anything to drink A Not really.
over at auntie’s house? many How themof were there? She No. don’t allow me to drink over Linda, girls, Evie Patricia. Three give respect. there. her Young ladies. give You her what? any Were any the —were there oth- Youngs er there?
A I give her respect. A Lonnel. they picked you When up, any Well, you talking about at the house beer in the car? or around? Wherever all went. all You went to Diboll? may sir. Like Lonnel. make a mistake. I think Roosevelt was. don’t myself. know for And sure. Was there beer at Diboll? All right. A Not at particular time there A And Roach. wasn’t. What do while were down did y’all go, Where whose house? there? A Lonnel. I sit around with them for a was the occasion? say while until get Deshawn he want to some beer. What do mean? know, said, Roach “I carry will going What were all to down do go a case half get or a case or house? Lonnel’s something like that.” Oh, know, they just went we— So we left. there, know, know, down they you— Q Who is Deshawn? brother-in-laws, sisters and like really A I They don’t know his name. that. him call Duck. I don’t know him. Leroy you heard Linda McGrew — Did Deshawn Duck or come testify yesterday— you all, up talking getting about beer? —didn’t wanting get Was he beer you all wanting beer?
351 — any while Q you all have beer And did A Well Hill? Slipper at you were over wanting get beer? Q you Or to all Yes, A A many did have while Q beers How Q Which? Hill? Slippery at A All us. got Well, drunk one before we A I had Q was this? Where there and drunk another.
A At Lonnel’s house. that you get the one Q did Where had drunk before? Q go any all get Did beer? again. Repeat that over at you got beer You said in? you go car did Whose up in Lufkin Leroy’s house before
A Roach. to went Diboll. running right? car all Was Roach’s Q An and a half before. hour you go get did to the beer? Where by You still didn’t have beer Diboll, got time to did Hill, A I Hill or Slippery call it Goat Oh, whatever the name. No. no. get Hill? did beer Slippery Goat Hill Where had, Slip- getting off to finished
A Yes. pery Hill? you stop anytime All at right. Did Slippery Hill? Before we along highway Slipper to or from going Hill? Well, have none then. we didn’t Well, stopped coming we when we was
back. Then, any— have right. All time up to the went but one beer Q What for? Hill? Slippery To get say can’t that word. Hot —I tamales. Slippery beer at Q Hot tamales? Hill? many how hot tamales All Slip- you drink at much beer did How you get, did Willie Mack? pery Hill? Well, get I didn’t none. Deshawn A One. some, bought me him. some for by you got finished it time Had any? eat wagon? tamale hot many eat? How the next right, sir. And beer had? four. About Diboll, probably Q we be almost And who that pint drink with? light. the red ofMost the time it was me.
Q you Is that opened when it or finished Q you Then high pint have had as as a of it? yourself? gin by I opened That’s when the second one. A Yes. Q All right. many And how did Q period beers time? Over you you have from the time there at were that, I I Yes. don’t don’t drink know. that light, counting red not one that that you at the time. It may same take you opened, up you until left Diboll? me three or four pint. months drink one cans, A About five five or six. Okay. Q But on Saturday, going that Diboll, down to Diboll Slippery Hill So, six, if had five or meant house, Leroy’s know had you already had three. Is that right? five or about six before left Diboll? A No. All together. All together had five or six. Whenever left. you feeling? How were did When leave Diboll? A Pretty bad. really I don’t It’s know. eve- you mean by pretty What do bad? ning, evening. late A Kind of—I can’t describe it. Who with?
Q Well, very try best to. can Young I left. Wilton A I ain’t never really just been like that Well, any did why you reason before. Leroy? didn’t leave with Well, Have had ever that much beer to Leroy go me to told with Wilt. home, drink before? asked And I Wilt to take me and he okay. said No, sir, really. not Well, how did he know that Wilt was had, say, pint Have ever about a to Lufkin? coming gin before? Well, I really don’t know. He Oh, yes, gin I had some before. know. Q Did you get use the bottle whole I me. asked Wilt to take yourself, Willie Mack? right. Why All wanting come to Lufkin all back and leave Then a gin. shared bottle of beer? big Was it a bottle or a bottle? little drinker, really I’m no really. not I don’t drink until I around some Oh, day. gin no. didn’t have no friends. All you why Wilt tell — say A I I have had some. coming that he was to Lufkin? it, big And when had was it object. MR. That GOODWIN: bottle or a little bottle? assumption an him any- that he told pint. thing. Wilt where right. Do know All withdraw MR. Well —I ASKINS: was why Wilt from Diboll going Honor. question,Your Saturday Leroy’s house going to THE You withdraw COURT: night? question? take me told Wilt to MR. ASKINS: there. good place THE Is this as COURT: always an recess? do
as to take afternoon does right. And Wilt *56 do? tell him to what Yes, Your Honor. MR. ASKINS: gentlemen, nothing to ain’t got THE Ladies majority, COURT: The recess at this will our afternoon we take do. for approxi- time. will be in recess We will, Q he? He won’t mately ten minutes. not You are admonished that Wilt’s at that time know or among yourselves case to discuss this robbery? used in the going car to be until have retired anyone
with sir, that time. not at your verdict. consider for ten minutes. We be recessed will you find out? did When (A at until recess was taken 3:00 P.M. question. this let me ask P.M.) 3:25 she ever Did Linda McGrew—was your you had a beer around in, Bring jury THE COURT: down at Diboll? hand please.
(The jury returned to courtroom house. sir. Over at Lonnel’s at this point.) with when saw And who was she may THE You continue COURT: you— there see her and she was your direct examination this wit- with ness. hand? —with beer you, MR. Thank Your Hon- ASKINS: or.
Q When? MACK MODDEN WILLIE house. Lonnel’s Over stand and testified resumed the witness was she with? Who further as follows. A Her sister. sister? Which EXAMINATION
DIRECT Evie drinks and Patricia because CONTINUED Evie orange It or chámpale. kind of looks some QUESTIONS BY MR. ASKINS: now kind is. forgot like. what red break, Mack, took a we Willie when we say drinking some kind Evie was happened to find out what trying chámpale? or orange red Saturday. down Diboll Chámpale. Leroy did your knowledge, To drinking Leroy anything?
not tell Wilt? Linda Was drinking? "Whatwas Linda Okay. testimony yes- You heard Wilt’s terday? A Same thing. Chámpale. All three of
them ladies were. testimony hap- Is that red Was about dog wine? Wilt’s pened in the case— A I don’t know what of it the name is. know it when see it. Q —basically true as far as know? Q Okay. Had ever tried of it? And when did inform me Have ever really known whether it basically Wilt’s information was true? an beverage? alcoholic Repeat again? A It’s alcohol. tell When me that could Wilt
Q Okay. Chámpale of *57 kind? some over have come and seen in ser- that A Yes. vice station? Q When itwas decided that —was it de- while ago. Just a that cided car in Wilt’s would be used the During When? the break? robbery? sir. think, I mistake, if I ain’t made a
gotwe back to Leroy’s house. ever right Had told us that before now? Q Why? No,
A Because Leroy said his car was up. messed truth, denied, But had never in girl, you? that had stabbed the Did hear it the car when came— yourself, You did it Leroy’s Leroy’s car when it into came house? No, already sir. We had went there Q right. All And as far as
once and he wasn’t there. Young robbery, Wilt involved in the in going into store with to rob say wrong Did he what was with his store? car? No, A He said something the starter about
something. don’t know. he in go But did fact into store the first time the two of went Q That’s what Linda yesterday. said into the store? youDo recall what said Leroy about it Leroy And did into go McGrew ever something sir. He said about that store? or something. starter I don’t know. Q Did he that indicate to his car working?
wasn’t Did he tell his car Q Leroy McGrew, your Did knowl- working? wasn’t edge, ever out of the car? he ever said that first time know advance Was Leroy McGrew business? taking care of anything about Leroy McGrew know that car—did
that hospi- to the going all over advance to be robbed? going that that store was
tal Leroy’s got then to you and Wilt When Oh, yes, He was one house, and the children were Leroy, Linda it, Leroy. planned there, they? not anymore dis- have of it other than planning about the cussion time idea what Q And do have you had had breakfast morning after that was? house? over Corine’s dark. It was up? Did mess one long any recall as to how youDo it dark? had been to Lukfin. try again. way Let me on our we were When Saturday morning after
On that July? Q And that was got up good and Corine fixed A guess. breakfast, Leroy’s you went over to recall, take From doesn’t house. July? down in long go sun a time to A Yes. *58 A sir. Q you already testified that believe words, pretty Q night comes In other good to place he said that had when late, doesn’t it? rob— house, Now, you Q Leroy’s left you Q something —or to that effect. Wilt, any beer with you all didn’t have and you, did statement, initiate did
You didn’t that No, No, Q true drink? Is it that Wilt doesn’t him. A I ain’t never seen you Q anytime Did he mention at after house from walked back over Corine’s while Q you anything to drink Did have Leroy’s? you Diboll? are around Wilt No, we in Diboll. got sir. Until me, no, didn’t see Wilt you drink a right. Did Wilt see you around when he men- All Q Who was night? anytime at that in Diboll? beer you tioned it No, sir, sir, No, believe. I don’t Nobody. so. don’t believe say? he have to did What town; Lufkin, you got After back to me, got back to Luf- A Told “We family is, Leroy weren’t his kin so we can take care of some business.” around, you riding did all went home it, “tak- way he referred Is that you anywhere, you and stop Wilt? care of ing business”? after on the Front we were Yes. We Leroy at home. find—after wasn’t couldn’t any Did Leroy, any have beer while were Did or and Wilt one of any the Front? have drink while beer to getting gasoline? out
A Not the first time I went there. Then, you All right. and Wilt drove gotten gasoline, After back Leroy’s over to house. Is right? you go? where did they just made it there. A Front. Did have beer at Q you stay Did together all—did Leroy’s house? you go apart? split No. We up. Leroy’s watch television at anymore beer on the house night? Front while were down there? beer, sir. That’s when I had the that second went time we back there. How much beer have while the Front? Well, so didn’t watch television when Leroy and them first cans, there. Is A About two two or three cans. that right? Q Well, about. Do remember how many cans of had? beer A About two cans. Q And Leroy’s then did leave house Right? that is recall. Leroy after gotten and them had home? A Yes. you feeling? How were you go? Where did *59 A Pretty bad. well, stayed Me and him I there and — Q Well, bad”, you say “pretty when go for get money a while until some Wilt enough sick to get go home? from get gas. his some brother to Oh, no. Q get money get gas? Did he some Q was causing know what No, sir, then. right got not He it from feel bad? Leroy. A Drinking. Q Leroy And did and Wilt and leave Q that time know at what was Leroy’s together? house making you feel bad? Yes, sir, drink, everytime I because know, Q you go? just I And where did can’t. —I Q Are felt ill or saying some get gas. We went to you felt mean? you go gas? Where did A Both. place, A I don’t it know but had been your body? Where did feel sick in couple robbed once a of ago, about months A My head. jail. I since I’ve been in don’t know the place highway. name of the on the main head What about felt ill? up a little minute. Let’s back because Wait really drink that much A I can’t cut once bit. problem got here. I a scar hurt on hurt on this side and still and it right. Ml this side. first store the time. to the We went hurting? your head Was Q Which store? really hurting. little It wasn’t A A bit. lady got young A The one where the the outside? Q On killed. A Inside. go in that And did right. Ml All right, Inside. store? on the you had about two beers After Front, then? did watch television with in that store Who went went and sir. That’s we A Me and Wilt. wrestling match. watched Why you go did store? watching And who the television was Well, to rob it. intending I was And nothing. know I see Wilt didn’t Me, Wilt, Leroy and his wife. of the —I wanted to be cool. one Linda McGrew? cup up coffee front or bought me a of Yes, sir. like that. something living In the room in the McGrew and Wilt went inside When house? store, didn’t know as Wilt far as robbery? anything about Yes, sir. could she see hav- beer, beer, ing drinking where she was? buy? did Q And did Wilt What buy? house, seen me Wilt Lonnel’s she fact, drunk at drink. As matter candy something. I don’t piece A A once. their house when we barbecue know. house, At Lonnel’s eat off leave—did drive *60 barbecue? from there? They ain’t had none. Well, Well, I walked down let’s see. any? Q Did have I street, ain’t made a mistake —if the if I mistake, come around the ain’t and made have no They barbecue. Yes, I the come around other way. other So, Leroy’s right. you go Q Ml back way, way. the back around match. wrestling and watch the house over there? Who drove Leroy do did Wilt and What A Roach. the watching after finished wres-
tling match? robbery trip Was this happened murder happened then back on front. Went then? Front that And what do at the did the first time. A No. That’s time? So, right, All drove No. I took it from him. over there —Roach over there the drove first Q right. by All don’t mean right?
time. Is that stole it from him. Q And where you, the front seat Q Is that correct? back seat? say Yes. You can it like that. A Back seat. Well, I don’t—did from steal it there, you got when over him away or did take it from him? went in the Wilt store? A I took him. it from you why How did did take it — parked? Where was the car from him?
A Across to the hospital. Well, him and a dude have misunder- standing away I and took from him that All right. you going What were to rob night. her with? pulled had he knife on
A Knife. person? other you get Where did the knife? really. not somebody. A I took it from it open Was took it? Q Who? A No. say? A Do I Q Why away George take it from Q Yes. Houston?
A Houston. had it in his Because he hand. George That is Houston? Q Why away George take it from Houston? Q And— Oh, well, I know. don’t him. took it from He didn’t know feeling kind of to- going what was to do with it. I took it George protecting ward Houston? him. from Honor, I MR. Your ob- GOODWIN: take it from him ject. leading That and suggestive. day that same or night? Honor, I agree, MR. Your ASKINS: question. and I withdraw the May witness, Your approach the *61 you Did him take it from that same Honor? weekend? may. THE COURT: before, IA think I two weeks did that. Askins) Q (By I you Mr. will show State’s trying say You’re not that George Forty-five. you Exhibit Number Would gave you Houston the knife— if it open that and look at it and knife see
A No. I took it. yours you if is the took knife that her, Q —to or kill from lady George? rob that place to him at other you talk Yes, sir, I took from it is the knife Diboll, Texas? George. put up No, Family it back there.
Q Close it nowhere but sir. Wasn’t in time. Affair at that moment arrangements for that you make Ranger knife to be surrendered to Texas you time ever had only that the Q Was Don Morris? up to him time talked picked up investigation— for ago? Q And three weeks was about past
Had it in the month? been Mart, robbery? the first Q —of the Jif-E It’s think that was been—I may in the I I him club. A No. had seen I week, last. don’t last the week before him, by know. pass speak know. Q Where? week? Okay. Was last At the club. Family Affair? Q At All But right, sir. told—is night Deborah Dav- the knife had enport killed? was So, you seen him more than once Family right? Affair. Is that at the Oh, did, you I yes, never Is that the knife that used to stab with him but once. make no conversation Davenport Deborah with? seeing ever Mr. Q Do remember pistol Price’s down there? Then, why all of please will tell us did, If I I don’t remember. it was that stabbed Deborah Daven- port? actuallity But is that reason Davenport what? killing it? Why I did for Deborah Why did kill her? Q Yes. A No witness.
A Don’t leave no witness. hap- tell us what Will that in prison? learned in that station that pened walked night? recall, told, if And had Officer at the George Houston there Was did, robbery you that the next Leon Price last time to rob time in the walked going to kill a witness? you were store, time? the second did, may A If I remember. don’t George Houston? have. don’t know. sorry. George Excuse I’m Not me. talking to Leon Do remember Young? Houston. Wilt Price on more than one occasion? talking to me. Do recall Excuse you by yourself? Q Were Family Leon Price at the Affair? *62 Yes, sir. Yes, sir.
Q you happened Q you And will tell us what she given as And after had the mon- door, ey in up register given you walked the to the from the cash time that money left that store? the from the drop— floor A No. Well, I told her a stick-up this was give money. me all the hit I her and she Q me? Pardon fell. I stabbing started her. A She had—when me give money she the Did have the out at knife the time out of register, the cash I her I told stick-up? told it was a her know money there is more somewhere else because, you say, I I like been a sir. they just robber. I know keep don’t mon- give you money Did she the out of the iney register, you the cash know. cash register? ^ give you money And did she the cash register register? the cash —from give you money Did she out of the floor drop? give How it did she bag. In a paper try ever her to open the Q give you money And did she from safe the back room? the floor drop? And hit gave ever from had her before she hold her behind as you money drop? from stabbing the floor her? Q And did she give you money how her, hit When which fist drop? from the floor hit her with? A I I told the money her have all left, A I I my think with if ain’t make a and I is lying. know she sure, I think. mistake. don’t know for right. give did she maybe my but I don’t know for sure.
Q Well, which knife did have the drop? And that was out of the floor hand —which hand did have the knife in? it in put Did she a sack or did she give Well, down, when had her I had it in you the money? my right hand. money bag were in a and a stabbing When her? jar. you get jar money And did and the bag? Do remember hand which had A I got all of that. up the knife in when came her and her, told a stick-up”? “This is paper take the sack your hand also? A I think I it in left my hand.
don’t know. *63 you the knife Q hand did have money bag, jar And which Q Did have the her? as stabbed in your sack hand when paper hit her? My right hand. No, sir. Mack, which Q do remember Willie the first to her? wound
Q those three Where was—where were No, things? Q you stabbed Do remember where floor. on the Sitting down first? her Q Why you put them down would is her head. A All I remember
floor? why you Q you remember Did —do to no I didn’t want leave wit- Because head? stabbing her ness. A Do I remember? to thing was the first did why you remember No. Do lady in order to have no witnesses? this her in the head? stabbed I hit her. have no witness. So couldn’t fist? With you certainly didn’t count the her, did number of times stabbed happened to Q And what her when hit her? Mack, why you stab her would Willie A She fell. trying to kill her? the head if no A I didn’t want witness. Q Did fall? she fall—where she So, your knowledge, to InA the back room. Young into the store? Wilt come already in the room? Was she back tell And did he holler at fell, she did she make move- When get out of there? gotten ground? ments she had to the after say? did he What movements did she make? What “Man, me, A Told come on out there.” Kind of scuffled with me. Tried He was scared. fight back. Did leave? she successful? Was A What mean? inside, as he go back get you away from her Q Was she able testified? any period of
for time? money you get jar and the bag— her? Q How did hold knee on her one knee on A With one sack? paper —and the the floor. *64 362 Leroy’s Over house?
Q you Q go Did ever in and Yes. back stab that anymore? lady Well, Wilt was scared. He didn’t know what to do. door; Leroy went in the front Q leave the station then? door, go told us to the back side door. And did run with back to Wilt Mack, I asking Willie know that I was car? happened way what on the from Boles parking Leroy’s lot over to house. by side, We weren’t side though. you all happened talk about what at all? ahead, was Who him or I Leroy talked to and Wilt. A Wilt. tell them? What apart How far were whenever apart? were farthest said, “I I think I killed a woman.” remember, honestly really. A I can’t say? What have to right. All Do remember discuss- Leroy really say nothing. ing the murder-— say? did Wilt What Just looked me and shook his head. Q —-with Leroy way Wilt and I Okay. go want to back to scene of home the car? I the murder and want to what ask on in going was the mur- head when going der on? was anything Do if remember was A I I drinking. said? was never —I hurt never doing that. nobody like I’ve been some Leroy think if I asked she was me just I robbing. nobody. never hurt something. dead. Wilt did too or drunk. said, Wilt “She dead?” telling jury Are this knew said, “I don’t know.” doing going as it, really. I don’t know who said to rob the door the store? Q They you, asked “Is she dead”? sir, but I didn’t to hurt want A Yes. nobody. told he ever told Leroy, pistol,” had told “Get a —had to kill her? find he couldn’t one. said, mean, just He “Fuck it.” I ex- No, sir. me. cuse Then, did Wilt tell him or did tell right. all That’s lady?
him that had stabbed the way that’s the he said it. yes, I A I did. think — “Use knife.” way on the happened What or over at Leroy’s home house? to use the knife? He said *65 money felt like you all the Q you get Did Yes, A sir. to coming you to the knife? you he tell use Q When did A No. pistol. no couldn’t find A After we Why Q not? So, to use Leroy you who told it was to his rent. Leroy enough pay give A I the knife— split? made the you before Was that A sir. No, putting When we sir. place? Q —to rob house. there in the money down sir. testimony about Price’s Was Officer face, I him his too. will tell to you correct? talMng his with Mil the knife to Q Did he tell to use mean? What do necessary? the woman if was testifying Q You Officer Price heard after the the Front seeing about on No, murder? to do you all discussed what Had event didn’t want witness left? correct, far as as Q Is what said Say again. that coming and him on Leroy being and there Leroy, hap- Did before you all calling stopping the scene and night, talk about what do pened over? that was left? about witness Mr. arguing Do you remember Mr. Leroy either T. told Had time? Price at that after— Honor, Your I am MR. GOODWIN: feeling? How were object going leading question. to this drinMng. Pretty bad. I had been appreci- MR. I ASKINS: him, Leroy me to I saw told After question, ate I will that. withdraw the and the beer give six-pack him Your Honor. I stuff. money that had and AsMns) Now, Q (By Mack— Mr. Willie money get Did back? give I him? What look if up, —can can. Q Yes. day night after or that after The house, Leroy’s all got over Q You never? money up? divide the did, him. help I always money? get Did Wilt up walking Officer Price When Yes,sir. Leroy money get you, gave Leroy get money? and the beer— money. him the give me, put
When light Officer Price Yes. Leroy give told me me everything got. A stayed night all with him. I gave it to him. I reached around with Yes. sleep— And where did my give hand like that and it to him. A On the couch. money ever back— *66 Q —at Leroy’s house? Yes, A sir. A On the couch. Q Leroy? —from Q Where couch? living was the In the Yes, A sir. room where the television is? Q That asking. is what I was Yes, A sir. Yes,
A sir. Q Did Linda see there? Q You taken were down to the Yes, sir. jail. Is that correct? Q Now, cook a did she meal for Yes, sir. A No. for She cooked the kids. I didn’t Q by And were questioned Officer eat. Hayes. Price and Officer Is that correct? Q you leave that When did house Yes, sir. morning slept after on the couch? Q The two men who testified here. A I left that night. Yes, sir. stayed You whole night there? it, And being denied involved Yes, sir. left that night. We barbecued. Yes, sir. Q At Leroy’s house? Q Why? go jail. Because didn’t want to to you get Where did the meat to barbe- Q So, you lying were then. Is that cor- cue? rect? A The meat? jail well, While go let’s — A I forgot that store. ahead with this. money Did use the from rob- go did take off and down Kir- bery— byville. Is that correct? buy—to that meat with? were arrested down there two Right? months or so later. any Did Linda eat this meat? A Sir? Leroy Did ever contact after Did Linda eat that meat? Sunday, left his house that after the mon-
ey— robbery? course, A After we did Leroy Of did? dig a hole Q Well, you going Leroy, me and A Me and Roach—I mean Roosevelt, through it or what? Linda. There was a Leroy, us there. whole lot of Yes, sir, adig hole. robbery, anybody Did know about the wall? dug a hole you get there eat- except and Roach ing? make out?
A Linda. robbery? Q Linda knew about the try Q Did have another occasion A You when Roach told her. like escape breaking out that? by Okay. Yes. *67 over Nobody eating else that barbecue of that? Q you Were accused it, Sunday there on that knew about Yes, A sir. though, they? did to that No, Q anything Did do with you
A sir. to attempt escape? second certainly did not Q Young And Roosevelt No, Is off for right? thing know about it. that But sir. break he me to for him. the dude that told sir. Q you. I’m understand sorry. didn’t Q right. All You arrested down in were Kirbyville that by lady officer that invited for thing told me to break long A That bed, you? you out from under the weren’t him. Yes, sir. Q prisoner? Another Grandma,
Q you lady And that called Philly Named Gibson. Right? in. whose house were tool to kind of Q long thing Is this some out dig with? any Is kin you? she A Yes. my my step-daddy’s A On side. That is dig? help Did him step-daddy’s momma. got After over here Fine. also a knife right. All make County
Angelina Jail —and that is where jail? there while were over Kirbyville, from it? put isn’t Yes,sir. A Yes. ? out of you make knife What did there, some trouble over A One of them vents. you? Q Air vent? you get All into right. —did for? you make knife jail? What did try from that escape ever myself. A Kill yourself? Why to kill want escape? All right. try How did chance. A I like I had no feel Through wall. think Modden, you Can of anything say that your second else did over there before this really? mother or aunt week? past my A That’s aunt. by were raised her with a kids, number of weren’t
Q What? hang myself. Tried to Q And, course, given good But that was this week. upbringing raising, weren’t Can think of anything before that? talk whippings we about light cord, with a cord or an extension So, All right. you try when did whippings things, with some other she hang yourself? same, treated all kids the not? did she Monday night. Q Why yourself? try to hand not telling jury You are *68 I
A Because ain’t I had no chance. don’t get never a whipping you did didn’t want to die. But I feel like had no deserve, you?
chance. sir. MR. ASKINS: Pass the witness. always You you got? deserved what bench, May approach the Your Hon- Yes, sir.
or. far you But as as her trying to teach (Discussion bench.) at the right wrong, you from she did talk and you, counsel with didn’t she?
WILLIE MACK MODDEN Yes, sir. resumed the witness stand and testified Q So, you it is not like don’t know is further as follows. wrong right. and what is You know do things, you, don’t those Willie Mack? CROSS EXAMINATION sir. QUESTIONS BY MR. GOODWIN: you And did those as a things Modden, Q You are Willie Mack aren’t kid, you they knew wrong. were you? A Yes. you got you you older When and said Mack, me, you Willie know do not? stealing things skipping started and A Yes. school, you wrong, also knew those were didn’t you? IQ am going questions. ask some going truth, You are jury to tell the Yes,A you?
aren’t you skipped When school and those did A Yes. things, you things those because to, you? didn’t wanted Mack, looking your Willie on back childhood, raised, where were Rosalie A wrong you knew things they And were those wheth- And would do you? wrong, were didn’t well, really didn’t drink
er you were— then, back But did them? still later,
Q Drinking something that came isn’t it? know, then, bur- back to the Q And burglaries. talk about glaries —let’s to the first one went believe the things, you But when did those Dairy burgla- Queen pen for—was that taught is not what auntie knew that ry? you. Company. Phil’s It was Taxi That’s Dairy Q Okay. you remember Do things knew those And talking Queen I’m about? Was burglary wrong? Dairy Queen? store, no It too. It wasn’t A No. was a deliberately things did those Dairy Queen. to, because wanted in front Q You where your friends-— Oh, talking yes. you’re where I know further, remember when about. burglary? pen first went only you and not couldn’t *69 front, get in the but there was couldn’t there you. You said were others with police in front. officers Yes, A sir. Yes, A sir. although And there were others with you if there stayed knew that time, you, Mack, by Willie in, happen? and broke what would stealing things, you? other hadn’t
been jail. A toGo Yes, A sir. catch police The officers would And like said later about the air you, would see wouldn’t because conditioner, deal, burglaries big no were they? they? Yes, A sir. sir. idea, you thought of Q And a better you? didn’t you’re really telling jury not only reason did them is be-
that the Yes, sir. them, you to do got someone else cause Mack, go it was idea Willie you? are around the back? sir. Yes, sir. you, Mack yourself, Because Willie you’re you’re not blam- Q And the one— Modden, them wanted to did because that blame. ing anyone taking You’re else. time, you? do them at the didn’t figured out how You are one that door. Yes, break the back sir. Yes, sir. you go And did pull the store and gun on the woman or until wait she Is correct? came outside? Yes, until empty Wait she came outside to So, the fact that were involved some trash.
with someone else in that particular rob- Q Empty trash? bery, you’re them, not blaming you? pretty Was it close to the time when by Because knew that time what she would closing up? be was right wrong, did it be- cause wanted to. Q When she came outside to empty the trash, go make her back inside the Q And then go up let’s to the rob- first get store and money? bery, you the one that caused get twenty-five years in TDC. And that is go And did she back in the store and it, given, twenty-five wasn’t money? years? money And she handed put Q You actually spent only nine and a half it in a sack?
years, you? didn’t sack, A Put paper it in a sack. Q Okay. you got And then after the mon- Q If you time, good hadn’t lost all that ey, then make go her back out- earlier, could have out a lot side? . couldn’t you got outside, And after back Q But robbery, on that no one else gun, still had the *70 helped you plan that robbery, they? did Yes, A sir. A sir. you undress, That is when made her you And a gun, you had and had wasn’t it? gun quite walked around with that some Yes, A sir. right? time. Isn’t that Q Why you did make her undress? Yes, A sir. A I get away. So could you you said kept gun until you planned Had that? you you needed it. Is that what said A really. Not earlier? How did know to do that? Yes, sir. just it in popped my mind. And when decided to gro- rob the store,
cery gun, needed that didn’t mind, Q Okay. it came into it When you? good seemed like a idea? Yes, Yes, sir. sir. caught, he tell got did it, did it be- When did
Q And when you? to? you wanted cause Yes, sir. Yes, sir. appre- you got that’s then Q And it doing had a for purpose hended. a a while it take woman
because would go and make get store, and then back dressed if So, she if the woman at the call, it? phone wouldn’t rape the didn’t said— woman, you? Yes, nothing like I don’t believe making dressing she is and Q And while that. call, away, running phone Mack? you, said, going not aren’t Willie “I’m Q But if she said should,” be she would you, but rape Yes, lying? robbery, didn’t away with that You her, tell rape but Q You didn’t you, but her, going rape “I’m not got away for Q For a while. should”? a month or two. nothing like that. A I ain’t said two sir. About months. rate, her you did make Q But at robbery probably I believe undress outside store? and arrest- in June weren’t committed August. inup ed until there, you standing While gun on her. right? Does that sound about you went Okay. And from there robbery, But after believe TDC, incidents you got several and name is your brother —his last and TDC. Don’t a brother whose Williams. last name is Williams? guards cuss the You would all would prisoners would cuss store, burglarized Y’all things like that? fights *71 all break that store one you into Yes, sir. A time? you do they try to make Q And would A No. and cause you didn’t want to do things that he robbed robbery, But after problems. store, he? didn’t Yes, A sir. Yes, sir. solitary, lot time in of spent caught. you? got And he didn’t Yes, Yes, sir. sir. you say “solitary”, Yes, When does that sir. they mean take general out of the that, And thought about prison population put you by a cell you? yourself? Yes, sir. sir. Kind dark. Q You your went back to cell and they And did that when wouldn’t thought still you got your about it and
wash dishes. Remember when want- toothbrush. And how did do that? ed the ice water? A I melted the put toothbrush and together razors with it on the toothbrush. You felt right get had a ice Q toothbrush, And a plastic that is kind water back there. pencil of like that there. And, course, there were other in- Q it, gets when melt hot and this, mates that did but got came and it, can things stick those down in can’t you, didn’t they? course, your Of disciplinary report, Q And did stick one or two razor does it actually you reflect that were the in it? blades words, leader of that strike? In other A Four all together. your nothing idea. And there is together. Four all wrong being a leader. those single edge Were or double wasn’t, A I though. edge razor blades? Q You wasn’t the leader? A Those were those thin ones. Q I beg your pardon? rate, But any you got blamed for it A The little thin ones. you got solitary. Q Those little thin ones? And then when got —when Q Kind of like those that we off of course, TDC, fights you weren’t —of safety those razors? drunk fights, into small, Q But thin ones. acting weren’t under the in- But when put them all four to- fluence of alcohol at all. gether, they long cutting edge make a like that? person Even when the time the —re- doWhat mean? guy member when the called mother *72 were from one end of the name, fight a bad out got broke way toothbrush all the down to the other hit. Remember that? end? there, You still have the scar don’t
you? No, A sir. you did cut him? anyway, But you— Q Did Yes, A sir. A Both sides. then, you? drunk Q You weren’t them on both sides? put You No, sir. A
A Yes. then, to do no one told Q And All four sides? they? did A No. No, sir. sides? Two that wanted you did because Q And Yes, sir. to do it. So, placed side and two were on one Yes, sir. side? placed two were the other circumstances under same Q Maybe sir. again? do it would Q Okay. night And that that after A I don’t know. it? isn’t happened, rate, problems But at all the Saturday eve- Saturday, late Yes. On TDC, you weren’t you did have Sunday morn- ning. happened And it then, you? intoxicated it. ing I did No, sir. done knew that he had You intoxicated? weren’t you? wrong, didn’t guards would do when What thought you thought about it and like did? talked to them did, you? about what didn’t us. Beat it, still did didn’t Q And it, thought The more about it, your mind, change didn’t did Willie looking see. There Q And back—let’s Mack? burglary at was a burglary awas —there one, Wilt Remember that where Diboll. it, having thought And after about was in? you go went to—where did then day, the shower? next and someone else? Q Wilt and he you were in the shower While say you’re only one Q You face, cut his throat? soap on his caught? up
A No. I cut across here. Somebody told get caught. A I didn’t across Q You cut there? it, I didn’t. but told did it? Q Someone kill It kill Q Okay. Didn’t him. didn’t
him, it, Willie Mack? course, they you, but were with Of it, did do
A sir. A working No. was at Mims before left—I mean in when was Diboll. Q You didn’t do it? Diboll, When were in worked
A I my was at at mother-in-law’s house for Mims? that time. A Yes. You were at mother-in-law’s you perform your Could duties there house? supposed and know what were to do? Yes, getting put- I was cow hides and you? How old were ting salt on them. A About twent-three. cows, Q Okay. they When killed those already said they skin them out and salt them —had down? you already pen been in the at that time? put someplace And then them else.
Q But then come on to Lufkin. Put them in a or a big barrel vat? course, Mack,
Of Willie room, They put big No. them in a old ’83, paroled out December of layer, way five to a five this and five this to, you parole where did Lufkin? way way, way. and five that and five that four-way corner. A No. Diboll. Q Okay. any problems You didn’t have Diboll, parole plan Diboll. Your said job, did
didn’t it? worked at a sawmill? Q Shortly back, you after moved up moving yours ended in with an aunt of
that lived Lufkin. sawmill, And at that did do? what glue Worked on the machine. Q How old was she? job? Were able to handle that A I can’t—I can’t recall.
Q You don’t know how old she was? What have to do? was, pretty really forgot No. She’s old. A I but we —I throwing plywood top some Q What was her name? standing that machine and there we were Cartwright. Corine putting glue putting by on it and two long How live there? layers togeth- four on there and stuck er. pretty couple It was a of months. —a you put plywood That is where Q Okay. hap- And since this incident together? died, pened, I think Corine didn’t she? that, You have to be fast to do So, moved with her and then don’t along way, you
sometime started work- ing Company. at Mims Meat
373 words, you other through Q From the time—in you come Is that when were, hap- this at the time plywood never even plant they making an to be pened, you never were known these over there? throwing sheets everyday that drank alcoholic or someone Oh, no, sir. a lot? whole it? That’s not No, talking about? You know what I am up question back Q On date this —let’s working sir. wasn’t on—I You the first robbery. first machine, they bring it gluing on the when robbery Mart? at the Jif-E over there. got to fast to work at You have be real course, robbery you, wasn’t new Of that? it?was Oh, yes, got you’re doing? to know You this Q You had done before? right. A That’s to know by yourself to be able it Q You had done
job it and act done, you? and the details of when they knew how you’re to? supposed right.
A That’s more you say you And even learned about it went TDC. right, if Because don’t do up. it all can mess TDC, from some learned right.
A That’s them, people did call there —what any problems You didn’t have not to witnesses? ones told leave job, though, you? did always A I call called them them —we They put clean-up No. me on crew. gangsters. I had little problem. That’s when course, Q Gangsters. Okay. Of Q Had a little what? good not to leave thought it was idea A Problem. witnesses? on into Luf- Let’s take
kin here. course, left a down Of witness in Lufkin and met living
You were Silsbee. Leroy. course, drinking Of started left a witness —truth- because now a lot? fully that wit- speaking, because left lot, you? did You never drink a ness, half to TDC for nine and a went years. identify me, though. she didn’t day drinking far as a lot the this As lot, you didn’t drink a happened, identify She didn’t repeat your A I words. drank — *75 Q brought they you, But then later on at in and told the Jif-E Mart were woman, ”,
robbery, you you, you didn’t kill that did “Willie or asked “Did Mack— robbery kill commit the out at Jif-E Mart?” you? You didn’t the woman at the Jif- Mart, E you, or was it a male? said, “No, you do And didn’t that.” A It was a woman. Yes, sir, I sure did. now,
Q Okay. kill you But didn’t her? And not that it matters a lot truth, Mack, you told the Willie because sir. them, you you? but lied to didn’t gun? You had a Yes, sir. Yes, sir. said, ‘Well, Mack, they Willie that your You had a over stocking head? you to pick woman was able out.” Yes, said, you “Didn’t do it.” sir. course, said, “I you Of couldn’t have that robbery, you After were talked to. stocking my had a over face and she robbery, you questioned After that were couldn’t,” because that would be admit- by Leon or one of the other law enforce- ting to it. They questioned you ment officers. rate, questioned But at were whether or not committed that rob- thoroughly by police were bery. picked by though out that woman even Yes, stocking your had a head. Isn’t course, you committed it Of we know true, that Mack? Willie did, now because said Yes, case, being So that that makes it stocking your realistic, fact, But wore a over all more now TDC, head. they believe what believe over at don’t is, saying then be- What am realize, you, do also tell it that left a lieved after because your person picked robbed there stocking your witness. You had a over though you stocking out had a picture even identify face and didn’t think she could on? you. So, on, stocking though even had a her, well, You didn’t kill but now-— you, that woman identified didn’t she? if logical would be had killed they say. person, pick you sir. That’s what she couldn’t out with a face, stocking over could she? Q Okay. They said that. And it? questioned about it, she? She couldn’t done could A- you, you had identified Because she questioned about it. could have? She Oh, no, to the pen He’s been But he’s thief.
Q Okay. you question I ask If understand, stealing. right? go ask me to for Is ahead and don’t repeat it or slow down because want Yes, sir, I guess. anything or you the chance to answer give *76 pen? to the Q You know he’s been explain anything. Okay? Yes, A sir. Mack, further, being that Willie that, So, done but he had never case, you, questioned and before, the fact that that and have done point at some in time together Leroy hasn’t it before and you have done course, robbery, I know that with—of the circum- it before or whatever done say he was Leroy you that involved. — stances, jury, in telling the all you’re not really Leroy involved that? Was that, made do are honesty, that he Yes, sir. you? That Mart? Jif-E No, sir. Q That Mart. Jif-E it, you do did he? Q He didn’t make A That first? No, sir.
Q Yes. it, And, course, thing talk about course, And, if don’t want about it. sir. to, robbery, you that don’t have do to do Q He was? you? sir. right. A That’s course, involved, Q Of he was although in the You remember when Mack, got you it is not to do Willie like you looked around and Fina Station and before, something that had never done walking back and forth? saw dude is it? sir. No, sir. then, very cool place The wasn’t was you had it. Because done it? sir. No, that, Q Leroy has very never done has he? Q Why think it cool? wasn’t walking A Because I saw dude back No, of, no, Not that I knows that, somebody else forth. was Plus is, I am saying generally speak- What there, out too. ing, Leroy known an old Have is as thief. it Q And if went ahead and robbed ever heard term? then, happen? would what it A It wouldn’t like was. be Q He takes stuff. It be I feel this: wouldn’t like like that it last time. happened was stuff, don’t He steals but he have gotten Q Right. But would go there guts enough pull out walking by. dude caught because that robbery, he? does right? Is words, In other there witnesses around, that, thought about didn’t Q stupid, You’re not is I’m saying,
you? are And that why you If he went back to the wants to rob that store down whoever, around, car and told there with Leroy cop driving “That isn’t he can do Right? it. cool.” A That’s you’re it, But going not to do Q “That’s not cool. good *77 It’s not a idea.” No, That’s sir. you told them? Q But again you later thinking Yes, sir. right. That’s about it you or all talked about it. And while were down in there you say And when Leroy wanted to go station, there was a car cop by. that came it, course, do of the fact that went car,
A A white cop yes, sir. there, back too, down go wanted to you? didn’t again, cool, And it wasn’t too it? was Yes, sir. No, sir. So, know, put Leroy let’s where he Okay. am talking about the first time really belongs. you were down there. You happened know when this in back Yes, sir, I know it. July? Q Although your says statement sir. there a cop was car or there was a white Mack, Leroy. don’t like Willie police car by, that came and watched Okay? your friend, And he is though, isn’t back, to see if he going to come he? her; then robbed first time there, were down there cop was also a car that passed by, and, got my wasn’t there? And have own reasons course, I against you don’t hold it that he friend. cool, It you thought wasn’t about it and But you do realize in July, that back decided it good wasn’t a idea. he didn’t run you, down here and tell on right. That’s so it is not like he ran down here and this, in doing turned for is it? said, And if Leroy “Hey, why No, you go didn’t and rob it?” him,
You Wilt, would have told “Jump in a And he didn’t run down here and lake, fool. It good you. wasn’t a idea.” tell on Wouldn’t Q So, people, they’ve those been close to you. words, they’ve in other Q So, you know are not going to your friends, they? been haven’t in
jump just a fire Leroy because tells to, are you? they protect you by tried not A them, telling telling not on blaming for you’re not them
too, they in because trouble. this, are motives, So, they they had two anything, did Q They didn’t make do they to tell on didn’t want they? want Right? on themselves.
tell A That’s night, did that And what it. to do because wanted if, fact, said, stayed But “I in Leroy in car,” truth, telling he is isn’t he? So, is, sir, stayed it is this the car. whoever it whether courtroom, courtroom outside fact, if, said, Q And “I didn’t Wilt Wilt, Leroy tries the blame on or on put anything They know about it. didn’t let wrong, they, Mack? aren’t Willie telling inme on it.” Is he the truth? *78 right. A That’s A sir. Because we discussed this before as this going Wilt never knew and why pen why Wilt is not to the going happen? is, Leroy and charged is with what he No, A sir. agree greatest that the interest this case is the in who killed this wom- interest Q And have maintained that all an? along, haven’t That’s sir. woman? Who stabbed that So, if they up doing just ended like person going is the is And that who truth,
have done and told the exact if even penalty. to face the most severe have point Leroy it comes to the that — say anybody, he kill saw did he? sir. Mack, way is it should No, Willie sir. be, isn’t it? say He never that. you talking A What are about? said, ‘Tes,
But if he me told about woman, this it,” ‘Tes, person The who killed says, it,” they and Wilt saw they that should face and are ones truth, telling they? are aren’t it, they? charged should with aren’t be sir. sir. And that is what we have all asked Wilt, Leroy they or shouldn’t be that, do, doing are aren’t woman, charged this killing should they? So, you’re Leroy not mad at or Wilt No, happened? for what they get saying I’m not off. should No, saying I’m not should bad, off, very very talking It for I am was all bad all shouldn’t but about you, charged killing for this woman. three wasn’t it? No, No, I’m blaming myself. Leroy Because was never there. Q You blaming yourself? you, yourself, said that he had no Q All right. What had done that
idea were going to kill that wom- night, exception with the killing, an. something you had done before?
Did he idea? What, kill somebody? A Who? Q No. exception. With the That means Q Leroy? killing. besides the In Robbing. other words, robbing, you before, had done that twice before. He knew going to rob her. really Didn’t he talk in terms about Q Twice with gun
buying there, once with—twice something go in buy gun with a before something and when done it. register came open, grab money and run? Q This time had a knife. Q Had that mostly been the plan you all So, as to the given by statement going to do? you know the statement he gave? Wilt— *79 No,
A I don’t know. sir. Yes, A sir. So, Okay. regardless of what happened Q You said it’s true? money, to the got who money some of the Yes, sir. you, course, and what have you said —of Leroy going Wilt is not gave you you, to lie on money back is he? got he you, you know, from when Leon came up. No, sir. I told him to tell the truth. A That my money. was Q You told toWilt tell the truth? Q It your was money, gave but he it back day The first I came to Court. you. Now, when say you never de- Yes, sir. you say you nied—when have never denied that, You told everybody you? didn’t killing Deborah Davenport, is not quite right, is it? sir. No, your That money was and it in robbery, this you? didn’t know, You you gave— the statement no. go Let’s back. testimony Houston, In the of George So, gave he it back to and you know? don’t have argument him there. Q You know George? Q So, as to what night, did that you blaming Leroy or Wilt for it? is, al- haven’t saying know, What I am if George you You — facts ways real truthful about been testified, he George about this and
told case, you? in this didn’t he? I have. just Well, have, let’s basically you but either, he? lie Q And he didn’t statement, Willie Mack. take says, here where Your statement you, lie on just going is not George effect, oh, put “She something to
is he? it on the put and money in the sack a little pushed her into counter and counter. just behind the room that was that have come to that people All the something crying and She still said is, no one jail, George is there when else I shut killing her. I think about me not isn’t he? her, really don’t but I the door behind A That’s remember.” any visiting you go over there on Hied. George look out and see and day and say. Q Okay. And that what cutting up. visiting laughing totally truthful. haven’t been Mack, tell look me. When Willie truthful, totally you hadn’t been Modden, Q George loves Mack Willie at me. don’t mad don’t he? A I’m not. it out straighten go Just ahead good Y’allwere friends. for. are here now that is we because So, told him says you when some- you said But said—when that, didn’t thing, you told him that, lie, *80 you you that told him that But he said George that someone you And if told girl your you that uncle told killed because her, there, you you lied didn’t told to kill wrong, to. And that’s isn’t it? you anybody, didn’t tell to kill Wilt did, I can’t A I don’t If I remember.
he? remember. Okay. course, Q But if he said that —of that is might I I don’t have. know. unusual, You were faced not Willie Mack. you But tell to kill her? no one did night, just that and George with Houston say, somebody,” and “I killed up to walk want you You her because didn’t killed think might is some kind they to leave witnesses. him, just night and told strange, course, being further, reason—and the reason realize for whatever And is, just up want him to think didn’t come here. George don’t ‘Well something until like idea, my and I told him because weren’t arrested my all right? 15th. Is October the me uncle wanted to.” Or October the 11th? course, Mack, Of point Willie at one time said that he killed Deborah Dav- A October the 11th. enport, and he was there. Q October the 11th. A Hied. And even after gave this state- him, Q You lied on didn’t talking about person ment — that’s looking around behind the build- ing, you know. it, But it is somebody to blame for isn’t it? A That’s true.
Q Okay. That’s true. Because prob- serious lady you indicated, The “I didn’t kill lems, knew that when told that woman. person probably That that. Isn’t that correct? came back and killed her.” Yes,sir. right? Isn’t that anyway, And Mr. T. was confronted might A I have said that. about this. And it was seriously taken course, Mack, Of you again Willie look said, wasn’t it? at me fussing like am at you. I’m not. Oh, no. No. No. And believe story was some- thing that, to the effect us, But you told “That man must have Leroy Wilt and her,” planned this. come back and killed but didn’t do it. Because this is hard to admit that you got with Mr. T. and talked to it, isn’t it? him station, and he met at the about it. Do know remem- ber that? Q And point there was even a in time—
you remember Mr. T. who supposed you said, then have been with at the ‘We robbed her Jif-E Mart and then Mr. T. killed robbery? her.” A Yes. Q And he stabbed her.
Q Or was at the Jif-E Mart *81 Yes, A robbery? sir. T., And right? we Mr.
A Yes. Yes, A sir. Q Was he there? And you, saw him and he saw and A “Whichone? The first one? long period said, for a time still Q The first one. ‘Yes, you it, you killed her. You did know Yes, A it he and all that.” was. Yes, A sir. So, you say he was you, say
still that? Q That right. wasn’t Yes, sir. right. That’s why did burn Q And so when—and Q And that was a lie. it? Yes, sir. evidence. No course, time, say, And, at that like I laying the blame on someone you were it? Q It had blood on else, you? weren’t sir. So, of that and burn had to rid Now, right lay not you know is it? anyone on else. the blame A That’s course, think- pretty that is smart Q Of laying on But the blame it, Willie Mack? ing, isn’t totally per- who innocent someone son. thinking? pretty Q That’s smart Yes, sir. nothing killing had to do with that Q And
at all. the officers logical And it is because later, or three hours some two saw blood, they could couldn’t see you’re doing today? But not they? Mack, I am thinking while about Willie on, same If still had that shirt it, just thing, up let’s clear one too. have happened? would know, he when officer said any at
looked didn’t see have arrested. A would been you, saw blood on at the time the officer arrested. Q You would have been Price, night, you Leon talk to they deputy, Hayes, and Officer they you all about the rob- night, asked then, didn’t blood bery, they? didn’t every question and answered changed But had shirts. officers, had been those who convinced their long time each one of working Roach’s changed You had shirts at them that you convinced at departments, house. least, time, go, to let Yes, sir. just y’all burned that shirt Q And questions Q You remember *82 said, you? like Wilt didn’t you? asked I it or whether burned don’t know detail, in everything mean but don’t I think it. not. Roach burned they questioned you do remember what you about? Q But the shirt burned? really. A Not
A Yes. Q Okay. At they got least when through A sir. you, they you jail then, didn’t put in course, her, Of you you said did hit but they? you know the room in which she was hit No, sir. where she was? know that room? sir. Mack, you Willie if anyone says else you were drinking or were drunk that Q is There a safe there. Remember— so, night, may be but as far you as A Yes. having to stumble down the street and Q —you saying you tried to get her to walk, couldn’t you weren’t that way, were open the safe? you? INo. lied. Q You lied? you You could walk and could still do you do, you think wanted to couldn’t But you? saying you remember tried to get her open the safe? you talking— What are you could things do So, if you said get tried to her to do, wanted to even though you had been safe, open lie, and that’s a why would drinking. say he and tried to open her to instance, For talking to them about the safe and didn’t? robbery going ahead know, A I don’t know. I don’t store and robbing Davenport. Deborah that, You were you? able to do weren’t course, you Of also said at point one her, time didn’t stabbing remember And clearly were able to think enough to cop know when a driving by, is
it good is not a robbery, do, time to do a it? But don’t Can asking you remember her like were able further to think statement, in your asking you not clearly enough to know someone is kill her? walking back and forth— say She didn’t that. I lied that. about Mack, know, Willie that is some- time, good that’s not a is it? thing is something pretty hard to —that admit. Mack, point Willie at one in A No. I’m serious. time said opened see. “She —let’s Q Well, serious, I know it. And I am the register gave money.” me the too. youDo remember that? am real serious because here have sworn to one statement— Of then, Mack, course, lies, Willie she some parts we know but money somewhere right? else. Is that people then have other who testi- *83 that over woman kneeling But are fied, just George. like Remember into the knife just plunging are you. George never lie on George? would her her throat and into into her neck and A I know. it. face, you not to do begging and she is said, kill me Q And “She asked not he kill Ime. you, “Please don’t telling She she had three kids.” her because kids.” three that, him said told George Mack? right, Willie Isn’t that knowing no how George way has Yes, sir. has, if many that kids woman so that, So, says said she George if she that, way only said told—if he that? said that for to tell George knew was Yes, sir. way only That is he knew him that. way. the same And know Linda is it, Mack. Willie no way has way has no Linda —Linda Yes, many children she has. knowing how So, beg- she George told that was to Linda that You and talked went kill had you not to her because she ging you? night, didn’t kids, you? had three to. Yes, sir. right. You’re Mack, Linda asked Q Willie —she Mack, only right, Mack, Not is he Willie but you, does bother asked “Willie truth, that’s the isn’t it? that that killed woman?” said, ‘Why it?” should Maybe Maybe way. you felt that admit, Q And is hard to isn’t it? that for reason way felt that whatever night. course, today, sitting while Of So, Mack, admitting it you are Willie on, you here the chair with suit now, you? aren’t where it is different from it, night, isn’t be- were out there night That there that woman that life is it is whose on cause now begging you not to kill her. line, floor isn’t it? And, essence, you’re in same she had kids. Because three position the same position. You’re is, aren’t woman begging you not to stab her Q She was kids. Isn’t because she three she long beg How right? IA don’t know. exactly us she Tell blaming anyone. you’re not now you. said Leroy, you’re not blaming You’re not Mack, we need to know Willie not fault. blaming because it is their Wilt this does not need truth because case the truth. anything decided on but be *84 jurors else, want exactly something these twelve to know You you know when So, what was said. when she open said what told me ask her to didn’t did, did, Mack, safe, she when did what that’s not right. Willie You me, want them know it. you? to were lying to weren’t it, You to open did ask her didn’t We have this talked about before and going said tell the truth. I did. just ago, you few minutes re- Q You to open asked her that safe? member lying? when started Oh, that safe behind— Q Yes. Q That’s not is it? right, sir. I lie didn’t about that. Q Why tell us did? now, Are to tell going is, the truth saying What I am do know Willie Mack? where the wounds stab were on her? that, youDo know Willie Mack? say? What did she here, will, Look if Willie Mack. kill “Please don’t me.” hard, know it but want to explain many say How times did she that? something jury. You this see this stab wound behind ear? her A About two or three times.
Q “Please don’t kill me. Please don’t kill Isn’t it true that were trying me. Please don’t kill me.” her open that safe? say She that? like But stabbing her in the back say? What else did she of the head like that? A She had three kids. It has to be in the back of the head Q All right. Tell me how she said that to going because are not to change, you, Willie Mack. They Willie Mack. are there forever. A I said, know it. my She looked at face and “Please don’t kill me. Please kill don’t me. Q right her stabbed the back kids, I got Please don’t kill me. three head, stab deep two wounds. Is that three little kids.” right? Q Sweet little kids?
A Three little kids. you trying What were to do that, Willie Mack? Q Three little kids. A Didn’t no—I didn’t leave want no wit- kill “Please don’t me. I nesses.
three little kids.” You didn’t want witnesses. Mack, know something, you Willie truth, getting why you to the explain just closer aren’t Can running simply cut her throat instead of
385 IA know. and over a over over and over knife
again? any- done have ever Q of them Neither that, they? thing like have No, A sir. No, sir. Mack, deliberately very did
Q Willie this, you? jury they didn’t that Q honestly tell this youDo you get out of this? get what should testimony and all your own sworn By means? Q what “deliberate” Do know officers police that of the evidence Something intend to do. to nothing do they gathered, stabbing. with this it. did it on Q intended to do You You doing for it. purpose. purpose You had doing it to leave no The for purpose you should get what They shouldn’t right? witnesses. Isn’t they? get, should what? Get though you drinking, you Even punish- get same They shouldn’t that, you? didn’t knew get? ment should Leroy I feel like do. Not Wilt. Mack, your nothing is there Willie Leroy should the same think You past, nothing your past indicates thing do? good the future. Do you would be
you realize that? in that store. Q Leroy never went A Um-hum. that, Leroy Look here. never Mack, why ever would care Willie he? Leroy happens what to and Wilt now? A True.
Why important to is it get the you think he should Why do Well, repeat again. — thing same do? Q Why important hap- is it it. he planned Because Leroy? pens to andWilt him, I feel like If it wasn’t for happens? him I What it. I told wouldn’t have did knife. do it couldn’t Why do Why does it matter it? into he talked back Because happens care what them? Well, they right I feel that are all they my are friends. through testifying just got You you done robberies fact that did that — feel what? like your own. my A thought they were Mends. Mack, they your Mends. Willie one. have to do that can not be Mends? How Mack, of those men did neither Willie any- off could have walked Look of them did
this: here. Neither to. time wanted that. I know it is 2:05 because No one made *86 do it. right dated. It was after two o’clock. A No sir. Because, you know the officer that you You testified could not blame Le- pass by— you saw roy, you? didn’t A I don’t know him. him, you you I know don’t know but you So now blaming Leroy. are seeing remember one?
Right? A Yes. way, A In a yes, sir. know what time out at We he checked jailhouse. the courthouse or the knowWe you’re So now blaming him. point, what he checked out at time another you doing Are that to take some of the so the we know times. The times are on you? blame off of tape. Oh, no. No. I am saying is that was What there Q This isn’t something was done— that twenty-something some from minutes didn’t y’all hospital drive up to the and got gum you the time Wilt before station, immediately run to imme- did this. this, diately do you? did So, is not just like it like (Snapping fingers), that. is it?
Q This something is had—that you had a thought long about for time. time, Q During What do mean? this it. thought about Well, let me the exhibits behind you something. there and show thought go- You about what were do, you? ing to didn’t
When Uncle came in Wilt said he bought a package gum, Wilt sir, —when intending but wasn’t to kill bought gum, said he package he her. lying, wasn’t was he? going You wasn’t to kill her? A No. when that? decide to do Q And we are here at looking up 1:39. A I know. don’t 1:39, bought gum. Q So, you already if didn’t knew And looking we down witnesses, identify any leave she couldn’t 2:05, there at is when woman you? you, didn’t opened register time. the last opened When she register the last already knew that a month time, her, shortly that’s when killed stocking before wore identi- thereafter, isn’t it? fied, you? didn’t I don’t know. I think it later than you already knew that best this, Mr. Goodwin. do is not thing to to leave witnesses. right? You think it this? was later than Isn’t that don’t think he as certainly You her, you? by stabbing do you are guilty as So, already what were knew do, going didn’t be, can’t can he? He twenty before say minutes You some in that knew before ever went store, you knew you walked do, going store woman? going to kill that *87 Yes, A sir. Yes,
A sir. then. Q up back before Let’s Q you went in You knew this before ever place, to rob the you decided When that store. kill going to you you know were did Yes, A sir. woman? Q You went in that store back when Wilt No, A sir. gum, bought you? didn’t Q didn’t know then? You Yes, A sir. A sir. Q you going then that were to knew to do it Q you already had decided But woman,
kill you? that didn’t you walked that store? Yes, A sir. Yes, A sir. you T. You knew when blamed Mr. for Q you you to were Did she talk while
this— drinking coffee? She standing around you, to didn’t she? talked Yes, sir. Yes, sir. man, an blaming innocent you? weren’t friendly, and wasn’t she? was nice She Yes, Yes, sir. sir. to for a friendly her And if charged Do realize been while, weren’t testimony and convicted on testimony, other wasn’t true? Yes, sir. talked She talked her. gotten That he could have death did all talk about? What
penalty. change enough I told her didn’t said, “Okay.” for no coffee and she meant, only not that would have What give coffee? Did she Davenport, Mil Deborah but man, an innocent Mlled cup free of coffee? Gave a Mack, thing same Willie trying Leroy, do to old you stay in there and drink Did somebody sticking the blame else? coffee? A For a while. Q Okay. back, eventually you while were in there for But came while, stated, like friendly, she was came back robbed stabbed Davenport, wasn’t she? Deborah the same woman that gave you cup fifteen coffee minutes right? earlier. Isn’t that Q What else did she do? A Nothing. begging you it as she was say? else did What she to kill not her because she had three kids. all. That’s bad she beg- feel while Q That’s all. kill ging you not her? you say anything else to her? *88 bad, Q you you If felt how come would Q coffee, After drank keep stabbing the knife into her? do? know, A I don’t sir. back car. Went to the Q You told Linda feel bad. didn’t Q And then back came from car A I didn’t tell Linda that. Right? and came back into station. they say some what is true right? Is that they and some is say of what not true. think, yes.
A I Yes, sir. know, You parts statement course, they Of lot say, you a of what say aren’t true. said only Wilt went to truth, you? admitted is the haven’t time, one but hospital you did walk Yes, sir. hospital. around the George. Just like You said didn’t night, You walked around lot that remember that. you? didn’t know, You she was stabbed some- A Yes. or eighteen where around seventeen way You walked all around times, according pathologist. to the hospital? George you You told her fif- stabbed times, you? teen Yes, sir. pretty You in counting were close then, You were about it wer- thinking that, you? weren’t en’t you? just guessed. A didn’t them. count A Sir? know, you say You knife is the this thinking were You about what Davenport knife killed same Deborah then, were to do going weren’t with. Yes. Whether I wanted to do it not. Yes, course, Okay. Of had decided not Q up The that Mr. one that is there to earlier because wasn’t cool. you. showed Askins Yes. knife? Q That is the blade, isn’t it? Q That is vent
Q Really truly, you said a while and like you, but ago, is no one else to blame there isn’t it? sharpened, It is is there? you sharpen that? Where is to blame? Who A On the floor. Mack Modden. Myself. Willie theOn floor? going said is the one to Mack Modden Willie commit with it. suicide
blame, he, Mack? isn’t Willie Mack, it? right, that’s not Willie lawyers old can holler about Le- Your Wilt, they roy can holler about Uncle how can holler about know, I Mack, am I’m Q Willie not—
raised, good, were raised weren’t but know ugly you, not trying be that, yourself kill going weren’t but with it? *89 Yes, A I was. really Q were. You Well, true, me truth— Q is and tell it Yes, A sir. just Didn’t truthfully. talking we are lady morn- Q up That that was here this oh, the three weeks—do recently, here last ing, she was nice? Christopher Parker? you know Yes, A sir. Yes, sir. Rosalie, person. she is nice jail him? in with kids, they gone to Her haven’t Yes, sir. pen, they? escaping to him about You talked sir. that, you? hadn’t him. You talked about just really nothing is at all There Yes, sir. on, can is blame this there? get George’s sister You said could sir. to they when came visit to visit Parker you. Mack, being do remember Willie jail? this instance Yes,
asked about jailer and Yes, jump could all all jump dispatcher, could you’ve even have been bad since You told him You go could down Diboll. you? jail, been haven’t that, you? didn’t that started off sir. He is the one dig tried to out of wall? You first. is the Q Okay. Christopher Parker Old deal, this isn’t he? here, one blame on right Willie Mack? You see this People get can that way, hurt can’t they? ever talk somebody jail taking somebody hostage? about aas really anywhere There is no indication ever change, will there? course, you thought Of a lot about getting jail. out Q Well, it is certainly anything not from Do Peavy? remember Mr. it, past, have done in the is Willie told him going to come out Mack? him, you? over yes, just sir. We be bull corning. Q You say people push when on you, course, Mack, Of Willie some people you get mad and strike out? probably going to take serious when things tell them like that. rate, But have made nu- course, you get Of mad and out strike merous discussions or numerous you, push don’t don’t getting jail discussions about out or A Sometimes. jail. tried to out of You even Honor, MR. pass GOODWIN: Your So,
made a knife. even after Deborah the witness. Davenport, hex’, even after killed MR. ASKINS: We have no further you still do things you are not supposed questions, Your Honor. do, aren’t *90 And if have done them for the well, you remember mother last—
talking about when six or seven
years old, you get had to a whip— harder HERRING, Appellant, C. Robert had to whipping, grad- she switch, bigger uated to a I believe she said. v. The STATE of Texas. all You did those all things, those mean No. 358-03. things and ugly right up until the time Texas, Court of Criminal Appeals
you killed Deborah Davenport. En Banc. Mack, you Willie do still mean and ugly 6, things, don’t Oct. 2004. talking getting When are about jail talking
out of about escap- ing grabbing jailer a dispatcher, ugly
that’s mean and isn’t it? things,